Family status: The evolving duty

Federal Court decision on accommodating child care raises accommodation bar
By Lorenzo Lisi and Jesse Rosensweet
|Canadian Employment Law Today|Last Updated: 03/06/2013

However, as the workforce changes, so too has the scope of this duty. In particular, child and elder care have created a new series of challenges to employers and employees. Not surprisingly, the interpretation of the obligation to accommodate is changing the face of workplace accommodation.

In a recent case dealing squarely with the conflict between the rights of an employer to expect its employees to attend work and arrange their child care responsibilities, and the employee’s right to accommodation, the Federal Court affirmed a 2010 decision of the Canadian Human Rights Tribunal ordering an employer to accommodate an employee’s child care responsibilities.

Fiona Johnstone was a full-time employee of the Canadian Border Services Agency (CBSA). Her position required that she work rotating shifts. Upon her return from maternity leave, Johnstone could not secure child care that would allow her to work a rotating shift schedule. Her husband worked rotating shifts for CBSA. Johnstone requested accommodation from CBSA in the form of three 13-hour fixed shifts per week. CBSA denied the request and offered her part-time employment consisting of 34 hours per week over four days.