Accommodation for Family Status Grounds: Most Overlooked Accommodation Obligation
One of the most overlooked obligations regarding human rights and accommodation is family status. This is a broad term, which applies to employees and their care obligations for individuals for whom they are responsible. This can include children, elderly parents, or relatives under the primary care of the employee.
One unique factor with workplace accommodation under the Federal Court Appeal case of Johnstone (The Johnstone Test) was that the employee must first make reasonable efforts to self-accommodate. In other words, the employee must first reasonably attempt to arrange alternative care in the event a workplace rule created interference with their care obligations. If this fails, the employer would then be obligated to provide reasonable accommodation. The Federal Court intended this to apply uniformly across provinces, however, some provincial tribunals took issue with this approach, including the Human Rights Tribunal of Ontario (HRTO).
In 2016 the HRTO (Misetich v Value Village Stores Inc.) maintained that self-accommodation is not required to trigger the employer’s duty to accommodate with regards to family status. While arrangements for care are to be considered, once the negative impact between workplace obligations and the employee’s care obligations are established, the employer’s duty to accommodate is in effect. In this Misetich, specifically, the employee was terminated after refusing a shift change that interfered with Misetich’s eldercare responsibilities, for which accommodation was requested by the employee (Misetich). The employer here was found to have discriminated upon family status grounds.
In the event of family status accommodation, both an employee and employer must jointly problem solve. Employees must communicate their situation to their employers as far as accommodation needs are concerned, and accept reasonable accommodation that the employer offers. Employers are advised to seek consultation from an experienced employment lawyer in the event accommodation obligations are unclear due to the differing opinions on the federal and provincial levels; employees faced with termination are advised to do the same.