Have you wondered what your rights are to attend to family responsibilities during working hours?
Or, are you an employer wondering if you can say “no” to an employee who requests much time away from work to deal with family obligations?
The answer can be more involved than you might think.
Employment Standards Act
The Employment Standards Act of BC provides employees with the ability to take “family responsibility leave”.
Employers must provide employees with up to five days’ unpaid leave per year to meet family responsibilities related to the care, health or education of a child in the employee’s care, or the health of a family member of the employee’s immediate family.
“Immediate family” means the spouse, child, parent, guardian, sibling, grandchild or grandparent of the employee, and any person who lives with the employee as a member of the employee’s family.
It is a good idea for both the employee and employer to document family responsibility leave taken, in case a dispute arises later.
But what about those employees for whom five days per year is not sufficient?
Human Rights Code
The Human Rights Code of British Columbia prohibits employers from discriminating against employees on the basis of a number of factors often referred to as “protected grounds.” The protected grounds include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or certain types of offences. In recent years, “family status” has been getting some attention.
There are many more layers and nuances, but basically once an individual is within a protected ground, the employer is not permitted to treat an employee adversely because of a protected factor, such as family status. There is an exception for bona fide occupational requirements, which is a topic unto itself.
So, what exactly is “family status”?
It is not defined in the Human Rights Code. It, like other protected grounds, is interpreted broadly.
In B v. Ontario (Human Rights Commission), the Supreme Court of Canada said family status includes both the absolute status of being a family member (a father, mother, sister, etc.) and the relative status of being in a particular family relationship.
Generally, it has been held to include childcare responsibilities. There are fewer cases relating to caring for aging parents or other adult family members.
In order to avoid discriminating against the employee, the employer must accommodate the employee’s requests, up to the “point of undue hardship.”
“Undue hardship” is not defined in the Human Rights Code. Employers are expected to absorb some hardship in an effort to accommodate. It’s when the hardship becomes “undue” that the duty to accommodate ends.
For example, an employee may request a change in work shifts because of family responsibilities. The employer should accommodate this, if at all possible.
However, if there is insufficient staff to meet the extra demand, thus placing added stress on other employees and hiring more staff is not financially feasible, the employer has likely reached the point of undue hardship. At this point, the employee will have to make other family arrangements in order to continue working in that job.
If an employee is unable to perform his or her duties at work because of family status, and the job requirements to be performed are bona fide occupational requirements, or if accommodation would cause the employer undue hardship, the employer may refuse to accommodate the employee’s needs. If all else fails, it is possible that an employer in this situation might consider dismissing the employee. Though if you are an employer considering this, tread carefully!
The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org.