June 18, 2015

In recent years, there has been a revolution in the attitude of courts to family status discrimination cases, broadening the scope of protection afforded to employees under federal and provincial human rights legislation. Yet with conflicting approaches being taken in different jurisdictions, this thorny area of law remains uncertain. Implementing accommodations for employees with childcare and eldercare needs also raises a host of practical questions for unions and employers. What should employers and unions do when family obligations of different employees conflict? What specific inquiries can be made to determine whether an employee has investigated alternative options? What steps can employers and unions take to promote work-life balance so that problems do not arise in the first place? Join a panel of Lancaster’s experts for practical guidance on this rapidly evolving area of law. Issues to be discussed include:

  • Exploring the types of “family status” protected: What are the competing approaches being taken across Canada regarding family status protection? Has the restrictive approach of the B.C. Court of Appeal in Campbell River, which requires a serious interference with substantial family duties, been reconciled with the broad approach laid down by the Federal Court of Appeal in Johnstone and Seeley? Is the Johnstone test, which requires proof of a family obligation that cannot be neglected without incurring legal liability, a workable approach? What do the competing approaches mean from a practical perspective? What legal approach is applied to non-childcare cases, such as care of elderly parents or spouses?
  • Best practices for promoting work-life balance and family status protections: What are some best practices for promoting work-life balance? Should employers and unions try to craft policies that specifically address family status accommodations, or should they be dealt with on a case-by-case basis under general accommodation policies? Can employers ask about employees’ family obligations in order to be pro-active in facilitating work-life balance, or is this an infringement of privacy?
  • Preparing for the accommodation process: What sort of accommodations may be requested by employees and required of employers in cases of family-related needs and obligations? Modified work schedules? Particular shifts or hours? Flex-time and part-time schedules? Telecommuting? What accommodations are currently required under employment standards law? How should unions address family accommodation issues which conflict with seniority, scheduling, benefits, or other provisions of the collective agreement?
  • Understanding the role of the employee: How far does the obligation to “self-accommodate” extend? What types of “reasonable alternative solutions” must an employee exhaust before accommodation is warranted? Is accommodation more likely to be required for employees who work in non-traditional roles or who work non-traditional hours?
  • Assessing undue hardship and challenges in the accommodation process: What type of evidence will an employer need to call to show that it has accommodated an employee’s family status needs to the point of undue hardship?