Parental Status, Shift Workers, Daycare and Childcare Emergencies: Work-Life Balance and the Law

Shift workers and other employees with unpredictable work schedules face unique work-life balance challenges. Can your boss make you work afternoon shifts if local daycares close at 6pm? Can you get fired for leaving early to pick up a sick kid from school? How can you make it work if you and your partner are both shift workers?

Many traditional workplaces are not set-up to work well for parents. Historically, they preferred to hire single childless employees or men whose wives did the bulk of the child care. While most people now know that it’s illegal to refuse to hire moms, many don’t understand that the duty not to discriminate against parents goes further. Employees have the right to seek “parental status accommodation” to help them succeed at work.

What is Parental Status Accommodation?

“Accommodation” is a legal term that describes steps an employer takes to help people with special needs access the workplace. A classic example is an employer who provides a workplace that is physically accessible for a worker who uses a wheelchair. An employer has a “Duty to Accommodate” certain employee needs under the Ontario Human Rights Code. This includes a duty to accommodate parents’ childcare responsibilities. This is called Parental Status Accommodation.

What Does the Law Say About Accommodating Parents?

In two 2015 Federal Court of Appeal cases, Johnstone and Seeley , mothers claimed that their employers had discriminated against them on the basis of their family status. The women worked irregular hours that changed from week to week, making it hard to coordinate childcare with their family members and childcare providers. Both women won.

Before the Johnstone decision, the law made it very difficult for a parent to succeed in a claim for parental status accommodation. For example, parents had to show that their employer had changed their working conditions in such a way that they couldn’t meet their family responsibilities. Existing working conditions couldn’t be challenged- even if the employee hadn’t been a parent when they took the job.

In Johnstone the Court created a new “legal test” for determining whether an arguable claim of family status discrimination could be established in cases dealing with employees’ childcare needs. It asks:

1. Is a child under your supervision?
2. Is your childcare obligation based on your legal responsibilities and not your choices?
3. Have you made reasonable efforts but been unable to meet your obligations though “reasonable alternative solutions”?
4. Do your workplace rules interfere with your obligations “in a manner that is more than trivial or insubstantial”?

Unfortunately, while this was a success for the mothers and their advocates, it still holds parents to a different standard than other employees seeking workplace accommodations. For example, other refusals to accommodate an employee aren’t required to be “more than trivial” to be illegal.

It also requires significant work by the parent/employee before their employer’s duty to accommodate is triggered. You have to make “reasonable efforts” to find “reasonable alternative solutions” before your employer is required to accommodate you. Courts and tribunals have interpreted this to mean that an employee needs to call local daycares or after school program, consider private childcare and even ask extended family for help in order to be entitled to changes on the job.

At the same time, as with all accommodation requests, your employer only has a duty to provide you reasonable accommodation that doesn’t impose an undue hardship on the company. What this means is that you won’t always get the specific accommodation you ask for or your ideal accommodation. An employer can suggest alternatives. Employees and employers are expected to cooperate on finding reasonable solutions. And, this means that while an employer has to be willing to take on some cost or inconvenience to meet reasonable requests for accommodation, but can say no to excessive costs or disruption of its workforce.

My Employer Has Refused to Provide Parental Status Accommodation, Now What?

Many employers continue to refuse to accommodate childcare responsibilities, or to even consider your requests for parental status accommodations. Others fire workers for taking time off to care for their children or for objecting to parental status discrimination. If you’re employer has discriminated against you because you are a parent, you may be entitled to take legal action. This might include a lawsuit, a human rights application or a grievance, if you have a union.

Since the Johnstone decision, a number of Ontario parents have come forward to seek compensation for parental status discrimination. For example,

• In Patridge v Botony Dental a mother’s claimed that she was wrongfully dismissed by her employer. She had been working as an office manager for over three years. However, when she returned to work after maternity leave, her employer demoted her to her former job as a dental hygienist and changed her hours. Her new hours conflicted with her daycare arrangements. While she sent her children to daycare and sought the help of her spouse, her extended family and a neighbour, she struggled with the new hours. When she complained, her employer fired her. In trial, the employer couldn’t show that the schedule changes were necessary.The Court ordered the employer to pay 12 months’ pay in lieu of notice (a.k.a. “severance pay”) and $20,000 in human rights damages for its discriminatory firing.

• In Miraka v. A.C.D. Wholesale Meats Ltd a father alleged family status discrimination when he was fired for taking 2 days off to care for his sick kids- as well as discrimination on the basis of disability since he later took a day off for hernia surgery. Since his wife was also sick, and his children were just toddlers, the Human Rights Tribunal agreed that he had a legally-protected duty to provide childcare. The Tribunal rejected the employer’s argument that the Johnstone test required parents to seek a babysitter for their sick children, since the accommodation requested was short-term and urgent.The employee was awarded $10,000 in human rights damages for parental status and disability discrimination. In addition, the employer was ordered to take human rights training.

Resources & Cases Cited:

• Human Rights Legal Support Centre, “Your Right to Accommodation
• Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII)
• Canadian National Railway Company v. Seeley, 2014 FCA 111 (CanLII)
• Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII)
• Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41 (CanLII