eCaseNote 2013 No. 02

Accommodation of Childcare Obligations in the Workplace

Johnstone v. Canada (Border Services) [2013] F.C.J. No. 92

In this era of complex family arrangement, many employees find themselves having to balance work with family obligations such as caring for children, and employers are sometimes reluctant to accommodate these obligations. Conflicts can emerge in attempting to arrange flexible work hours. A recent Federal Court of Canada decision has placed this dynamic into sharp focus, and an overview of the facts of the decision and its implications for employers is useful.

Mr. and Mrs. Johnstone both worked for the Canadian Border Services Agency (CBSA) – Mr. Johnstone as a customs supervisor and Mrs. Johnstone as a full-time border services officer. Their work schedule overlapped 60 percent of the time. After the birth of their second child, Mrs. Johnstone, the primary home caregiver, requested to work three 13-hour shifts a week to accommodate her parental obligations while remaining on full-time status. Despite the fact that other CBSA employees had received similar accommodations for medical and religious reasons, CBSA only offered her part-time work, for which she would not qualify for pension and other benefits.

Ms. Johnstone brought an application to the Canadian Human Rights Tribunal, which she won. The Federal Court of Canada subsequently upheld the Tribunal’s decision that childcare obligations could fall within the ambit of protections provided by the Canadian Human Rights Act.

After reiterating that the term “family status” in section 3 of the Act was to be interpreted broadly, the Federal Court found that Ms. Johnstone had demonstrated that her childcare obligations were substantial and that she had made reasonable attempts to reconcile her family obligations with her work obligations. The Court then considered whether her terms of employment interfered with her ability to fulfil her substantial parental obligations, and found that they did.

The Court noted that since CBSA had accommodated other employees on a full-time schedule for medical or religious reasons, it was satisfied that a case for discrimination had been made out by CBSA’s failure to accommodate Ms. Johnstone’s childcare obligations. The Court specifically rejected CBSA’s argument that if Ms. Johnstone’s request was granted, the CBSA would be faced with a flood of requests from other parents looking for flexible scheduling.

Canadian employers should be careful with all requests for accommodation on the basis of family status since the threshold for establishing family status claims appears to be blurry. Unless CBSA is successful in appealing this decision to the Supreme Court of Canada (and it has not done so as of this writing), childcare issues and parental obligations appear to now be protected as a human right in Canada, at least in similar circumstances to those in the Johnstone case. This does not mean that, whenever an employee raises childcare obligations as an issue, the employer must always accommodate those obligations. The Court in Johnstone noted that an employee does have an obligation to make reasonable efforts to find alternative suitable childcare arrangements before requesting accommodation.

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