An employee will be discriminated against by their employer in the workplace when they are treated unfairly because they have certain family caregiving responsibilities that the employee must perform. For example, the employee may have caregiving responsibilities toward their minor children, elderly parents or other dependent adult family members.

Family Status and Ontario’s Human Rights Code,1990

Under the Ontario’s Human Rights Code, (“Code”) family status is a protected ground (meaning that the Code protects people from discrimination based on family status). This means that employers are mandated to take certain actions so that individuals who are affected can participate equally within the workplace. Failure to do so may result in a finding that the employer acted in a discriminatory manner.

Common ways in which employees with family caregiving responsibilities are discriminated against would include:

• the employer refusing to allow the employee to work remotely;
• the employer refusing to allow the employee to take time off;
• the employer refusing to allow certain flexibility in terms of hours worked or scheduling of work shifts;
• the employer refusing to allow certain flexibility in terms of timelines or deadlines with respect to an employee’s work responsibilities or duties;
• the employer disciplining the employee for missing work; or
• the employee disciplining the employee for failing to meet certain requirements or expectations related to the employee’s work responsibilities or duties.

Key Aspects of the Duty to Accommodate in Employment Law

In Ontario, employers should accommodate an employee’s family status situation until the point of undue hardship. The standard for undue hardship is generally a high standard and usually results in the employer having to go to considerable lengths to ensure that their employee has been successfully accommodated. Common examples of accommodations with respect to family status would be providing time off to the employee, allowing a flexible work schedule or allowing for some flexibility in productivity demands or changes to tasks. However, undue hardship could arise if there were certain safety concerns that could not be met or the costs of accommodation were just too high for the employer.

The standard set out for employers is not perfection, but what is reasonable in the context of the specific matter at hand. It is the employer’s onus to show that they could not accommodate the employee without undue hardship.

Generally, the courts or the human rights tribunal will look at the set of circumstances that is specific to the matter before them to determine whether there was undue hardship. For instance, in determining health and safety concerns, costs and outside sources of funding, the law will consider the workplace itself, the industry the workplace is in, whether there was a collective agreement, what the employee’s role was in the workplace, what policies or procedures the employer had, etc.

What Can Happen When an Employer Fails to Accommodate?

Failure to accommodate an employee’s family status-related issues within the workplace could constitute discrimination under the Code and therefore result in a human rights complaint. The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

How Zeilikman Law Can Help

Zeilikman Law helps both employers and employees with employment law issues around workplace accommodation by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, litigation management, etc.

Contact Zeilikman Law today at (905) 417-2227 or online here for a confidential consultation to get your questions answered about this topic and other employment law issues.