Canadian HR Reporter

CANADIAN HR REPORTER June 1, 2015 10 NEWS EmploymentSource™ New to WestlawNext® Canada EmploymentSource is your fastest route to the employment and OH&S law you need to expertly advise clients, employers and unions. Be more effective and efficient in your research with the right mix of resources in one online research tool. EmploymentSource combines exclusive expert commentary, case law, legislation and dismissal notice periods, with functionality that is easy to use. Experience the benefits • Prepare winning dismissal litigation strategies • Defend occupational health & safety charges • Advise clients/employers regarding health and safety compliance Visit westlawnextcanada.com/ employmentsource or contact us at 1-866-609-5811 for more details 00224VB-A47772 really take the steps to consider what is going to be possible, and being proactive in that respect — if you have some ideas before em- ployees start coming to you and asking you, then that will help so you're not reacting so much." When it comes to the protected ground of family status under the Canadian Human Rights Act, the 2014 Federal Court of Appeal case Canada (Attorney General) v. Johnstone is now being inter- preted and accepted at a provin- cial level, said Shapiro. "So workplaces pretty much across Canada will need to deal with the issue of family status ac- commodation for a parent-child relationship, most definitely." at case concerned an em- ployee seeking accommodation for her work schedule at an air- port. e employer refused to ac- commodate workers with child- care obligations on the basis it had no legal duty to do so. However, the court disagreed. "Without reasonable accom- modation for parents' childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have," said Justice Robert Mainville. In advancing such a claim, the court said a worker must show: •a child is under his care and su- pervision •the childcare obligation engages his legal responsibility for that child, as opposed to personal choice •he has made reasonable efforts to meet childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible •the impugned workplace rule interferes with the fulfillment of the childcare obligation in a way that is more than trivial or insub- stantial. It's all about showing you've made reasonable efforts around childcare, said Shapiro. "ey have to come to the em- ployer and talk and dialogue about everything they've done to try to accommodate the needs of their family and to satisfy a third party — who might hear such a case at some point in time — that they've done everything that would be reasonable to find an alternate so- lution. So it's an individual thing — it's not going to be that every parent who's impacted by the strike will suddenly be able to take (time) off work… that wouldn't be an automatic solution." e old test, requiring a change in the working conditions or rules, was hard to meet, according to Sar- ah Molyneaux, a lawyer at McMa- hon Morrison Watts in Toronto. "is is a change to your re- sponsibility, it's not a change to the rule, so I'm not sure how the old test would have interpreted accommodating parents during a strike. But I think the new test definitely captures those parents." Employment standards Employers should also be aware of employment standards legislation that could apply during a teachers' strike. In British Columbia, for ex- ample, the employment standards have changed to include a "family responsibility leave" that allows an employee to take five days of unpaid leave, said Gage. "Childcare obligations would likely fall within that definition." e leave can be granted to a person needing to meet responsi- bilities related to "the care, health or education of a child in the em- ployee's care or the care or health of any other member of the em- ployee's immediate family." Ontario's employment stan- dards also provide protections through a "personal emergency leave" when it comes to employers with more than 50 workers, said Molyneaux. "Your employees have a right to personal emergency leave, which is 10 unpaid days of leave, and those are normally the days that employees use for sick days or to care for a sick or injured fam- ily members but they can also be used in this type of situation," she said. "at would certainly be one avenue for employers to accom- modate the strike, at least in the short term." However, Shapiro disagreed. "at's not the intention of this provision. A strike at a school is not what I would say to be an urgent matter concerning an in- dividual… (that) could be some- thing like your child was arrested and is at the police station but it's not some prolonged condition that might require you to be off work for weeks or months," she said. "is wouldn't fall under any of those care provisions for fam- ily members — nobody's at risk of dying or anything like that — so this is a human rights issue." Accommodations When it comes to accommoda- tion options, these could include flexible hours or personal days. Working from home is also an op- tion and that's where undue hard- ship comes in, said Molyneaux. "An employer isn't required to give the perfect accommoda- tion, so maybe for a lot of parents, working from home is the perfect accommodation but if you deal with a lot of sensitive information that can't be taken home or your job is just not one that transfers well at home, then that might not be reasonable accommodation for your employer to provide," she said. "If it's possible but just a little difficult, I think employers still have (a) duty to look into how they can make that accommoda- tion happen." For example, having an IT guy put in the hours to get an employ- ee set up to work from home is not necessarily undue hardship. "An employer is required to contribute those kinds of man hours and costs to make it work," says Molyneaux. Employers might even consid- er providing some kind of child- minding service, such as a board- room where kids can hang out. "at would be a big undertak- ing probably more suitable for some types of employers than others," she said. "You have safety concerns to think about, as well as productivity." And employers should be aware of possible feelings of resentment among employees. Unfortunately, that's a reality for a lot of accom- modation at work, whether it's around a disability or religious belief, she said. "at's not meant to be a fac- tor that an employer considers in evaluating whether it can make a reasonable accommodate to the point of undue hardship," said Mo- lyneaux. "It's always an individual- ized inquiry. Employers want to be as fair as possible, of course, and in the interest of fairness might decide to give more equal accom- modations to different parents. But their legal obligation is to give an accommodation based on the in- dividual needs of that parent and their family, so it's very likely that those would be different for par- ents, even if their children are only a couple of years different in age." Ultimately, it's a matter of hav- ing open communication with employees, said Gage. "If you have that sort of sup- portive workplace where people are feeling appreciated, I suppose, and supported, then you're less likely to get resentment on any of those issues." Provincial standards apply CHANGES < pg. 1 Credit: Mark Blinch (Reuters) People protest during a rally held by the Ontario Secondary School Teachers Federation (OSSTF) in support of teachers from Ontario's Peel, Durham and Rainbow school boards who are on strike, at Queen's Park in Toronto on May 14. The teachers are on strike as teacher unions, school board associations and the government fail to reach an agreement over multiple issues.

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