New Human Rights Tribunal decision sends a decisive message to employers about accommodating pandemic-related childcare responsibilities.
Current modeling respecting the spread of COVID-19 makes it clear that keeping children home temporarily is a responsible choice. Every working parent in the community is impacted by school and child-care closures. That said, even insofar as pandemic-related restrictions are accepted as the “new normal,” it is misguided to expect working parents to continue showing up during these critical next few weeks as if this was “business as usual.”
A recent decision from the Ontario Human Rights Tribunal confirms that employers have a clear duty to accommodate child-care responsibilities as an incident of the prohibition against discrimination based on family status. In Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98, the Tribunal awarded an eyebrow-raising $20,000.00 general damages and $29,724.39 in lost wages to a working father of three who was disciplined and ultimately terminated for leaving his shifts early due to child and elder care responsibilities.
The decision sets out helpful guidance for employers and employees navigating the challenging task of balancing full-time work and childcare during these difficult times. Cutting through confusion in the jurisprudence, the Tribunal declared that “the test for discrimination on the basis of family status is no different than for other grounds under the Code,” and similarly, “the question of whether the parties have met their obligations under the duty to accommodate is the same for family status as any other Code ground that could give rise to accommodation.” This is important because past decisions said that family status claimants have additional hurdles to establishing a prima facie case of discrimination, which is a necessary prerequisite to the employer’s duty to accommodate. In this case, the Tribunal held that the duty to accommodate was triggered as soon as the employee requested accommodation, and that “by failing to participate in the process, the [employer] failed in the procedural and substantive duty to accommodate the applicant’s family status needs.”
Commenting on the decision, the Applicant’s counsel Richa Sandill noted that while previous cases have said that the claimant has an obligation to exhaust alternatives for child or elder care before seeking accommodation, this decision makes it clear that self-accommodation is not a pre-requisite to a prima facie case. Rather, the claimant’s efforts at self-accommodation are “part of the employees’ overall, well-established duty to cooperate in the accommodation process.” Read Sandill’s analysis at https://lawofwork.ca/13360-2/.
It is clear that, in Ontario at least, employers have the duty to accommodate child-care responsibilities based on a simple request from employees. The Tribunal’s decision on this point resolves a decades-long debate in the case law.
Especially during these difficult, and hopefully last, months of the COVID-19 global pandemic, employers are well-advised to take a generous and permissive approach to the assessment of employees’ requests for family status accommodation. This pandemic will be over at some point in the future, and working parents who were provided with grace, appropriately accommodated, and valued during the worst of it will be the workers that employers can count on in the years to come.
Read the HRTO’s decision at https://www.canlii.org/en/on/onhrt/doc/2021/2021hrto98/2021hrto98.html?resultIndex=1
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