Canadian Employment Law Today

October 6, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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ANSWER: There is a risk that refusing to ac- commodate an employee's request to work from home due to a lack of childcare could result in a claim of discrimination on the ba- sis of family status. However, there are three separate Court of Appeal authorities in dif- ferent jurisdictions dealing with family status discrimination issues, so employers should seek legal advice in their jurisdiction. The test to establish prima facie discrimi - nation is set out in the Supreme Court of Canada decision of Moore v. British Colum- bia (Education). A complainant must have a characteristic protected from discrimination; experienced an adverse impact; and the pro- tected characteristic must be a factor in the adverse impact. The Federal Court of Appeal in Canada (At- torney General) v. Johnstone modified this test for family status matters, adding a fourth re- quirement — that the complainant must dem- onstrate that reasonable efforts to self-accom- modate were taken. This differs from the test in Alberta and raises the threshold for a finding of prima facie family status discrimination. In Alberta, the province's Court of Appeal recently refused to the follow the approach set out in Johnstone in the case of United Nurses of Alberta v. Alberta Health Services, and instead affirmed Moore is the appropriate test for es - tablishing prima facie discrimination. The court indicated that employers must be care- ful to not shift the burden onto employees to show efforts of self-accommodation and in- stead must focus on how the workplace rule and policy affects the individual employee's family obligations. This means employers in Alberta can no longer insist that an employee seeking a family status accommodation es - tablish that they have taken every possible self-accommodation step before requesting a workplace accommodation from the em- ployer. Once prima facie discrimination on family status grounds has been established, the onus shifts to the employer to establish that it diligently worked with the employee to find a reasonable accommodation. It is at this second stage of the analysis that self-ac - commodation measures may be considered. British Columbia has the most stringent standards for establishing prima facie dis- crimination as set out in Health Sciences As- soc. of B.C. v. Campbell River and North Island Transition Society. This B.C. Court of Appeal case established that prima facie discrimina- tion is made out when a change in a term or condition of employment imposed by an em- ployer results in a serious interference with a substantial parental or other family duty or obligation of the employee. This test narrows the scope of the family status discrimination test and has not been widely followed outside of British Columbia. These decisions of three different Courts of Appeal in Canada create uncertainty when dealing with family status discrimination claims. It is important for employers to seek legal advice in their jurisdiction, as what may require accommodation in one jurisdiction may not require accommodation in another. For more information, see: • Moore v. British Columbia (Education), [2012] 3 S.C.R. 360 (S.C.C.). • Canada (Attorney General) v. Johnstone, 2014 FCA 110 (F.C.A.). • United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 (Alta. C.A.). • Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (B.C. C.A.). ANSWER: It is well established under occupa - tional health and safety legislation that employ- ers have a general duty to ensure the health, safe- ty and welfare of employees at work. This duty includes protecting employees from communi- cable disease as much as reasonably possible. This interest must be balanced with competing interests of individuals who refuse to disclose information for privacy reasons. When weighing the invasiveness of a CO - VID-19 screening questionnaire and the risk associated with COVID-19 against competing privacy concerns, a questionnaire is likely to be considered a reasonable step for employers to take towards satisfying their obligation to keep the workplace safe. If an employee refuses to answer COVID-19 screening questions, this would likely constitute insubordination. The employer would have grounds for progressive discipline and could likely send the employee home, potentially without pay. Guidance surrounding vaccinations, on the other hand, and the ability to request informa - tion relating to vaccinations, is rapidly evolving. Only a short time ago, the prevailing opinion was that employers could not require employ- ees to disclose their vaccination status as this is considered personal medical information and is subject to privacy interests and legislation. However, a number of factors have resulted in a substantial shift in opinion. Recent developments driving this change include the rising case numbers in Canada, the federal government's announcement that mandatory vaccinations will be required for all federal government employees and federally regulated employers, and the introduction of a vaccination passport system in some Cana - dian jurisdictions. These announcements from the federal and provincial governments signal a shift in the balancing of competing interests and what may be considered "reasonable" in the circumstances. The evolving nature of COVID-19, and the recent announcements in response to it, sug - gest that there may be an ability to require dis- closure of an employee's vaccination status, though it will be heavily dependent on the jurisdiction and workplace in question, along with the active case numbers and future de- velopments. Given the rapidly evolving land- scape, employers should seek legal advice in their jurisdiction prior to implementing any policies requiring employees to disclose their vaccination status. Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and em- ployment law. She can be reached at (306) 956- 6994 or agibson@mltaikins.com. Canadian HR Reporter, 2021 2 | | October 6, 2021 October 6, 2021 Have a question for our experts? Email jeffrey.smith@keymedia.com Refusing a work-from-home request made for childcare reasons QUESTION: Is there a risk of family status discrimination if an employer refuses an employee's request to work from home because their child's regular daycare closed down due to an outbreak of COVID-19 or another communicable illness? Ask an Expert with Amy Gibson MLT AIKINS, SASKATOON COMPANY'S on page 7 » Employee refuses to answer screening questions QUESTION: How should an employer handle an employee returning to the office who refuses to answer the COVID-19 screening questions or disclose if they've been vaccinated? CREDIT: TWOELLIS iSTOCK Self-accommodation measures may be considered in the employer's attempt to establish that it worked with the employee to find reasonable accommodation.

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