September Employer Alert: Human Rights Tribunal Confirms Family Related Accommodation Obligations Are Not Infinite

Is an employee allowed to refuse a shift change because of their childcare provider’s pick-up time? Is an employee allowed to demand remote work because of their kid’s extracurricular commitments? Is an employee entitled to three months off to support an ailing parent? Employers are routinely faced with addressing what their accommodation obligations are further to their employees’ family commitments. And if there is one word that immediately takes employers into a potential HR minefield, it’s accommodation.

As a quick refresher, the Ontario Human Rights Code prohibits discrimination in regards to certain protected grounds. These protected grounds include family status – which applies to both the employee as a parent with obligations to their child(ren), and the employee as an adult child with obligations to their parent(s). Further to prohibiting discrimination based on family status, the Code also requires that employers accommodate their employees further to their employees’ family status related obligations. What does this accommodation look like? It can take many forms, including a modified work schedule, remote work, no weekend scheduling, a temporary unpaid leave, etc. There are though limits to an employer’s accommodation obligations.

In the matter of Aguele v. Family Options Inc., 2024 HRTO 991, the employee was a single parent with a 6-year-old child. The employee advised (albeit inconsistently) that they could not work evenings or weekends because of childcare obligations. The employer sought to work with the employee to schedule them in for shifts based on their availability. Due to the employee’s availability and the employer’s inability to accommodate, the employee earned less than they would have otherwise and filed a complaint with Ontario Human Rights Tribunal. In review, the Tribunal confirmed that the duty to accommodate is a co-operative and collaborative process. The employer always tried to work with the employee, but was not able to always provide what the employee wanted. For example, the employee requested shifts that did not exist and the employee requested that the company split shifts. The Tribunal held that “the duty to accommodate is not unlimited… the applicant expected a perfect solution, and effectively turned down proposed accommodations that were reasonable in the circumstances”. As the employee did not work collaboratively with the employer, the Tribunal dismissed the application.

This decision is a positive reminder for employers that they do not have an infinite duty to accommodate. Instead, it is a duty to work collaboratively with the employee and to then accommodate up to the point of undue hardship. Of course, employers should be careful to ensure that they are truly working with the employee and that they are documenting the accommodation efforts.

For strategic advice on addressing accommodation requests based on family status or otherwise, please contact our firm.