Covid-19 has made working from home the new normal for many employees. This new reality has created challenges for employees who, due to the closure of schools, daycares and other social services, have had to serve as full-time caregivers in addition to carrying out their everyday work tasks. Under these circumstances, it is important for employers to understand their obligations for accommodating the family care needs of employees.
Family status accommodation during Covid-19
The issue of family status accommodation is not new. In past newsletters we have explored how various tribunals across Canada have come up with differing tests on the issues of family status accommodation with the BC test differing from those used in other provinces. In a recent decision, the BC Human Rights Tribunal provided new guidance for British Columbia employers about family status accommodation. In this decision the Human Rights Tribunal confirmed that the Campbell River test remains law on this issue in BC.
Campbell River test
Under the Campbell River test, discrimination on the basis of family status will exist when a change in an employment term or condition imposed by an employer results in a “serious interference with a substantial parental or other family duty” of the employee. If the test is met, the employer is required to accommodate the employee’s care giving responsibilities to the point of “undue hardship,” which is context-specific, but may be established if the accommodation would, for example, result in excessive cost, have a negative effect on the morale of other employees, and/or pose health and safety risks to others. As compared with tests used by other human rights tribunals in Canada, the Campbell River test is generally considered to be a more difficult threshold for complainants to meet.
With that being said, in several cases, the BC Human Rights Tribunal has found creative ways to bypass the more stringent Campbell River test, without outright rejecting it. Moreover, the practical realities created by Covid-19, including potential future school closures, child care cancellations and significant concerns around disease transmission, are unique and largely unprecedented. As a result, BC employers would be well served to take a proactive approach in dealing with family accommodation issues, as follows:
- Make genuine, good faith attempts to accommodate employees with increased family care obligations due to the pandemic to the point of undue hardship. Accommodations may include allowing for flexible work hours, working from home, or taking paid leave time. If accommodations are not available, employers should at the very least be able to show what accommodations were considered and why they would not be appropriate.
- The point of undue hardship will vary in each case but employers should avoid making “across the board” denials for business reasons because those decisions will potentially be scrutinized by a human rights tribunal.
- Ensure that any absenteeism policies do not negatively affect employees who cannot work for Covid-19 related reasons. In other words, an employer must not discipline or terminate an employee who cannot come into work because public health officials have quarantined their child or advised their child to stay home and self-isolate.
- Do not make hiring, discipline or firing decisions based on whether a person or someone that they care for has or appears to have Covid-19, or needs time off as a result of Covid-19.
- Remember that the law does not require an employer to accommodate an employee’s personal preference. Therefore, where an employee is requesting an accommodation for reasons that could involve family status matters employers would be wise to request information from the employee about the reasons for the accommodation being requested and about what self-help steps the employee has taken.