Canadian HR Reporter

RELATED CASES flow from that relationship, and/or to the employee's work." To this end, it is appropriate to consider other supports available to the employee, but there is no obligation on an employee to first engage in "self- accommodation." In British Columbia, courts and adjudicators have set a more stringent test, requiring there to be a change in an employee's existing terms and conditions of employment that results in serious interference with the discharge of a substantial parental obligation. Regardless of which test is applied, in most cases, an employee who has the option of sending their child to school, camp or daycare during work hours and elects not to do so may have considerable difficulty successfully establishing prima facie discrimination. Under the federal test, the obligation to exhaust "self- accommodation" would include sending the child to school, camp or daycare. In Ontario and Alberta, an employee may not be able to successfully establish "adverse treatment" if the request for accommodation is tied to an employee's personal choice. In British Columbia, unless there has been a change to the employee's terms and conditions of employment (for example, to attend work during regular working hours), it will be difficult to establish a prima facie case of family status discrimination. The duty to accommodate may still be engaged (outside of British Columbia) if: (1) schools, daycares and camps remain closed and an employee wants to continue to work from home (rather than take an unpaid leave) even after being asked to return to the physical workplace, or (2) if schools, daycares and camps open on a limited basis and an employee requests a schedule modification or partial work-from-home arrangement to reflect the amended hours. If the duty to accommodate is triggered, an employer must determine whether the request for accommodation can be accommodated without causing undue hardship on the employer. Step 3: Determine whether the employee can be accommodated without undue hardship to the employer Accommodation is an individualized assessment. For some positions, a work-from-home arrangement is easily accomplished. For many others, a work- from-home arrangement is not feasible because the work requires tools or resources available only in the physical workplace (for example, manufacturing, sanitation or construction). Similarly, work from home is not a realistic option for an employee who serves customers directly in the workplace (for example, hospitality). Even if the work can be performed at home, an employer will want to evaluate how and to what extent this can be done effectively if the employee is also providing childcare. If the answer is not clear, accommodation can be provided on a temporary basis to allow the employer to evaluate the situation. Furthermore, the fact that a work- from-home arrangement may have been tolerable on a temporary basis under an emergency order does not mean that it would not result in undue hardship if the arrangement was indefinite. In other words, an arrangement that was tolerable in an emergency may not be so in the long term, particularly if the arrangement resulted in a situation in which the employee was unable to perform key duties. CHRR Priya Sarin and Matthew Badrov are lawyers at Sherrard Kuzz LLP, one of Canada's leading employment and l a b o u r l a w f i r m s , r e p r e s e n t i n g employers. They can be reached at (416) 603-0700 (main), (416) 420- 0 7 3 8 ( 2 4 - h o u r ) o r b y v i s i t i n g www.sherrardkuzz.com. HAVARD V. TREASURY BOARD (CORRECTIONAL SERVICE OF CANADA), 2019 CARSWELLNAT 1751 (F.P.S.L.R.&E.B.). Worker's trading of night shifts was discontinued but reason wasn't for childcare. She didn't pursue other childcare options before requesting accommodation. SIMPSON V. PRANAJEN GROUP LTD. O/A NIMIGON RETIREMENT HOME, 2019 HRTO 10 (ONT. HUMAN RIGHTS TRIB.). Switch to midnight shifts was retracted after worker with special-needs child called in sick without notice. Termination because she couldn't work afternoons was discriminatory. SMS EQUIPMENT V. CEP, LOCAL 707, 2015 CARSWELLALTA 385 (ALTA. Q.B.). It was reasonable to include childcare obligations and their costs in the meaning of family status and an employee's choice to become a single working parent didn't nullify the duty to accommodate. 24 HOUR 416.420.0738 We're the apple a day. sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 | 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent painful headaches tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make.

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