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Accommodating Your Employees’ Childcare and Eldercare Obligations

Accommodating employee scheduling conflicts is becoming an ever-increasing burden on employers and their HR staff.

This trend is not likely to slow down and will likely only increase in the years ahead. Fewer and fewer employees now have stay-at-home spouses who can be relied upon to shoulder all childrearing duties on their own. Also, as employees’ parents, who are generally members of the early ‘baby-boomer’ generation, gradually inch into their 70s and early 80s, those same employees also find themselves having to assist with eldercare, including helping their parents shop, prepare meals and attend appointments.

As a result, more and more employees have to juggle their work duties with significant childrearing obligations and/or onerous eldercare tasks. This often puts the affected employees ‘between a rock and a hard place’, intensifying their stress at work and putting the employer/employee relationship under increased pressure.

This rapidly growing issue is creating a difficult dilemma for business owners and their HR staff. On the one hand, the law and the desire to maintain good workplace morale require that your organization make some effort to accommodate employee requests for reasonable leaves of absence and scheduling changes to meet their childcare and eldercare needs. On the other hand, the imperatives of ‘meeting the bottom line’ and maintaining continued workplace productivity require that you resist these requests when they create excessive hardship for your organization.

As always, the key is knowing where and when to draw the line. Doing so requires that you fully acquaint yourself with the extent of your legal obligations, because your lack of legal knowledge could leave your organization with an expensive human rights complaint from the affected employee.


The Ontario Human Rights Code prohibits discrimination against employees based on family status. In the Code, ‘family status’ is defined as “the status of being in a parent and child relationship.”

Based on this statutory definition and the case law interpreting it, this provision of the Code not only prohibits discrimination against an employee because of the identity of that employee’s parent or child, but also protects the employees’ obligations to provide care for either their children or parents.

Moreover, this prohibition against discrimination based on family status is not restricted solely to biological or adoptive parents and their children. It also extends to anyone in a parent and child type relationship. This includes employees who provide parental-like care to a step-child, a young cousin, a niece/nephew, or an aging relative, such as an aunt/uncle.

Various jurisdictions across Canada have developed several different legal tests for establishing discrimination based on family status. In Ontario, to prove discrimination based on family status arising out of childcare or eldercare responsibilities, employees must prove that:

  • They have specific obligations arising out of a parent-and-child-type relationship;
  • Their employer’s work demands interfere with meeting those obligations; and that
  • Their employer’s demands create a real disadvantage or negative impact on their family needs, given their particular circumstances.

If the employee cannot meet each of these three criteria, then the employer has no legal obligation to accommodate the employee’s request for a modified work schedule. However, if the employee is able to satisfy each of these three criteria then his/her employer is required, under the Code, to take steps to accommodate that employee’s needs to the point of undue hardship to the organization.


Although every case depends on its own facts, a court will generally require an employer to modify an employee’s schedule if the failure to do so would fundamentally change that employee’s ability to care for his or her children. For example, in Power Stream Inc. v I.B.E.W. Local 636, the court found that the employer failed in its legal obligation to accommodate an employee’s family status when it refused the employee’s request to return to a pre-existing work schedule, even though the new schedule prevented the employee, who was separated from his spouse, from picking up his children from school on days when they were in his care. As a result of the changed scheduled, the children had to change schools and move in with their mother. Consequently, the employer’s new schedule meant that the father’s parenting was impaired because he could only see his children on the weekends.

“A court will require an employer to provide flexible working arrangements to employees”

Since the new schedule fundamentally changed the father’s ability to care for his children, the court found that the employer’s failure to accommodate the father’s request to return to the old schedule constituted illegal discrimination on the basis of family status.

Similarly, a court will require an employer to offer flexible working arrangements to employees so that they can provide ongoing care for an ailing parent, thereby allowing employees to work remotely, to work flexible hours, and/or to modify the start and end times of their shifts. For example, in Devaney v ZRV Holdings Limited, after the employer had prohibited flexible working arrangements, it terminated an employee’s employment due to his poor attendance and his failure to be in the office between 8:30am and 5:00pm each weekday, The employee was frequently absent from work and often completed his work outside regular business hours due to his obligation to provide care for his ailing and disabled mother. His mother lived with him and needed assistance with selfcare and transportation to medical appointments. The employer refused to accommodate the employee’s request for more flexible hours and argued that the employee had other options available to him, such as placing his mother in a long-term care facility

Ultimately, the Tribunal rejected the employer’s argument and found that the employer breached its obligations under the Code by failing to accommodate the employee


However, employers do not need to agree to all employee requests for accommodation. There are numerous cases in which employees have claimed the right to be accommodated but where courts or tribunals have found that the employee had no such right.

Firstly, an employer does not need to accommodate employees by agreeing to a modified work schedule simply to allow parents to attend their children’s extracurricular events or to see their children more frequently during the week.

Similarly, an employer does not need to accommodate employees simply because their work schedules put an unequal burden on their spouses to care for a child when their spouses are, nonetheless, still available to provide the required childcare. Examples of this limit on an employer’s duty to accommodate were outlined in Adair v Forensic Psychiatric Services Commission and Power Stream Inc. v I.B.E.W., Local 636.

Secondly, an employer does not need to modify work schedules or grant employees time off simply to accommodate their personal preferences. For example, in Wight v Ontario, the court found that the employer did not discriminate against the employee on the basis of family status by refusing to grant her an additional six months of leave, following the conclusion of her maternity leave, so that she could place her child in the daycare of her choice. The court held that the employer did not need to accommodate the personal daycare preferences of the employee as to which of the various daycares to use.

Thirdly, an employer does not need to schedule a shift change or modify an employee’s hours when the employee has alternative means of providing the needed care. For example, in Misetech v Value Village Stores Inc., the employee asked for permission to resume her former work hours, following a change in schedule, so that she could return home early enough to make dinner for her elderly mother. The Tribunal found that, since the employee was able to make arrangements for her mother to have lunch while she was at work, there was no reason why she could not make the same arrangements for her mother’s dinners. As a result, the Tribunal ruled that the employer was not obligated to accommodate the requested shift change


As with any form of accommodation, employers do not necessarily have to provide employees with their perfect or preferred form of accommodation. There are limits on how far an employer must go. What practical forms of accommodation must an employer provide when an employee requests accommodation for childcare or eldercare obligations?

“Employers do not need to modify employees’ schedules or grant them time off simply to accommodate their personal preferences.”

The first thing to note is that there is no ‘one size fits all’ approach. Each situation is different and an employer must consider the specific circumstances of each employee when assessing what form of accommodation is required.

In many situations, when presented with a bona fide accommodation request based on family status, an employer must allow an employee to do one or more of the following, provided that doing so does not amount to undue hardship:

  • Take unpaid time-off;
  • Take some of his or her paid flex days or statutorily-mandated personal emergency leave days;
  • Work a specific shift (i.e. day shift or night shift)
  • Work a fixed-shift, rather than variable-shift, schedule;
  • Work modified hours, whereby the employee works the same number of hours, but the start and/or end times of his or her shifts are altered; and
  • Work from home on either a part-time or fulltime basis.

That said, when an employer is required to accommodate an employee’s childcare or eldercare obligations, it is not required to make all forms of accommodation. For example, an employer will not necessarily be required to:

  • Provide the employee with pay for the time-off that he or she requires;
  • Maintain the employee’s pay at the same level after he or she begins to work reduced hours;
  • Provide the employee with his or her specifically requested shift times, if the modified hours or shifts are compatible with his or her childcare or eldercare obligations; and
  • Allow the employee to work remotely full-time when his or her family status obligations only require him or her to be away from the office on certain days or at certain times.

Ultimately, the extent to which an employer must accommodate an employee’s childcare and eldercare obligations varies in each situation and requires both the employer and the employee to participate in formulating a solution that works for all parties.

An employer should not unilaterally decide how to accommodate an employee without first seeking his or her input. Doing so exposes the organization to a significant risk of triggering a human rights complaint to the Human Rights Tribunal and of harming employee morale within the organization.

When faced with a request for accommodation on the basis of family status, an employer should ensure that it has all the necessary information about the employee’s circumstances before granting or denying that request. If the employer has any doubts regarding its legal obligations in the circumstances, it should consult experienced legal counsel for advice on how to correctly approach the situation to avoid the legal blowback from its decisions.

AUTHOR: Soloway Wright LLP - Employment Law Group

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