Canadian HR Reporter

32 www.hrreporter.com F E A T U R E S S P E C I A L R E P O R T LEGAL GUIDE PANDEMIC CREATES NEW CHALLENGES AROUND FAMILY STATUS ACCOMMODATION DOUG MACLEOD Founder MacLeod Law Firm in Toronto COVID pandemic has created all kinds of challenges for employers. Consider the following situation: An employee who lives with a parent asks for a leave of absence to stay home with the parent even though they are not required to provide care and support to the parent and the parent does not have COVID-19. The employee wants to limit social interaction for the parent so they are less likely to contact COVID. The employee frames the request as a form of accommodation on the basis of family status. The threshold question is whether requiring the employee to continue working discriminates on the basis of family status. Two competing lines of cases In Ontario, there are currently two competing lines of cases that address this issue. The first line considers, among other things, whether the child has a legal obligation to the parent — and in this particular case, no such legal obligation exists. So, using this test, no discrimination is proven and no duty to accommodate is triggered. In the second approach to this issue, the 2016 decision Misetich v. Value Village Stores, Inc. from the Human Rights Tribunal of Ontario stated: "In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent-child relationship and the responsibilities that flow from that relationship or to the employee's work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent-child relationship and the responsibilities that flow from that relationship in a significant way." Specifics of relationship This is a subjective analysis that depends on the specifics of the child- parent relationship. In particular, said the tribunal, "assessing the impact of the impugned rule [attendance at work] is done contextually and may include consideration of the other supports available to the [employee]. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need. For instance, if the [employee] is a single parent, both the family-related need and the impact of the impugned rule on the family-related need may be greater." The second test could be expanded, thereby making it easier for employees to prove discrimination on the basis of family status if the Supreme Court of Canada's analysis in a 2004 decision that considered if the contours of discrimination on the basis of creed were extended to family status. To my knowledge this has not happened — yet. Ask for information For now, as the case law evolves for these kinds of situations, employers should not reject this kind of request out of hand and instead ask employees to provide additional background information to justify the request. This could include information about the parent's needs so the employer can determine whether the employee's request relates to the parent's needs and the employee's responsibilities to the parent or to the employee's personal preferences. An employer is not generally required to accommodate personal preferences. This additional information may also result in discussions about alternative forms of accommodation that are less burdensome to the employer. CHRR THE As the case law evolves for these kinds of situations, employers should not reject this kind of request out of hand and instead ask employees to provide additional background information to justify the request.

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