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Don’t stay “mum” when accommodating a mom

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The past year has seen family status accommodation become a hot topic, and at times, a challenging employment law issue for many employers and human resources professionals. Adding to the law on family status, a recent Ontario arbitration reaffirms the legal obligation of an employer to address an employee’s accommodation request.

In this case, Renee Cahill-Saunders, a single mother of two, worked rotating night and day shifts at SMS Equipment Inc. (“SMS”). When on night shifts, she paid for a third-party caregiver to look after her kids, and she looked after her children herself during the day. The result was a very tired employee and mother. Realizing that it was too expensive to pay for additional childcare during the day, and that she did not wish to leave her kids in the care of a third-party caregiver for a long period of time, Ms. Cahill-Saunders decided to ask SMS to accommodate her by permitting her to exclusively work day shifts.

SMS refused this request, stating that the requirement that she work a shift of rotating nights and days does not discriminate against Ms. Cahill-Saunders.

When the case reached arbitration, SMS further argued that family status does not include childcare responsibilities. The Arbitrator disagreed, noting that childcare obligations are clearly within the scope of the family status ground.

SMS then argued that Ms. Cahill-Saunders’ request was about personal choice, and not a result of legitimate need. The arbitrator disagreed again, stating that it was clear that Ms. Cahill-Saunders had been experiencing financial difficulty in trying to reconcile her family obligations with her work obligations before seeking accommodation from SMS. As such, Ms. Cahill-Saunders was not making a request from mere fancy or preference.

The Arbitrator concluded that the rule requiring employees to work both day and night shifts had the effect of imposing a burden on Ms. Cahill-Saunders due to her childcare responsibilities that was not imposed on other employees who did not share her family status. In the absence of evidence that the rule or policy was a bona fide occupational requirement, SMS’ absolute rule for rotating shifts was found to be discriminatory.

The recent family status decisions should not be viewed as imposing accommodation for any and all requests.  Instead, the cases remind employers that they need to at least consider the request; determine whether it relates to a legitimate family status need (from the perspective of the employee); and canvass potential accommodations. Keeping in mind that accommodation is a two-way street, employers should not shy away from asking questions of an employee making a request so as to better understand the employee’s needs. An open line of communication will allow both parties to navigate an otherwise challenging time in the employment relationship.

Parisa Nikfarjam