Some of our clients have started seeing an increase in requests from employees for accommodation of family obligations as a result of COVID-19. While some requests may trigger an employer’s legal duty to accommodate from a human rights perspective, not all of them will.
In this article, we provide some guidance to employers on the types of accommodation requests that may engage family status protection. We also offer practical advice on how employers should manage these types of requests.
The duty to accommodate – family status protection
The BC Human Rights Code (the “Code”) prohibits discrimination in employment on a number of protected grounds, one of which is family status.
As the law currently stands in British Columbia, for an employee to establish a family obligation that requires accommodation by his or her employer, the employee must demonstrate a “serious interference with a substantial parental or other family duty”. The significance of the family obligation has generally been understood to include legal obligations a parent has to a child, or obligations of a similarly significant nature to children and other family members (such as elderly parents).
As with other protected grounds under the Code, an employer has a legal duty to accommodate up to the point of undue hardship.
COVID-19 accommodation requests
Family status protection in the COVID-19 context may be engaged in the following circumstances (although there may be other circumstances as well):
- An employee’s child care obligations; or
- An employee resides with an at-risk family member (high risk groups include persons who are immunocompromised, or with heart disease, hypertension, diabetes, chronic respiratory disease and cancer).
Child care obligations
Employees may request an accommodation as a result of child care obligations. Many child care facilities closed because of COVID-19, and with the possibility of a second wave in the Fall, this may happen again.
While child care obligations certainly can trigger a legal duty to accommodate, it is important to emphasize that an employer is not legally obligated to accommodate a conflicting schedule or a lack of comfort or preference in respect of child care arrangements. It is an employee’s responsibility to make reasonable caregiving arrangements that enable the employee to work.
In considering this type of request and whether a legal duty arises, an employer should consider whether the employee’s usual child care arrangements are temporarily shut and, if so, what other reasonable child care options are available to the employee. For example, has the employee considered family members, using a nanny or child care options in other locations. The employer should also consider the age of the child (is the child of an age that requires adult supervision) and whether the child has medical or other unique needs that require the employee’s presence or special care.
At-risk family members
Employees may also request an accommodation because they reside with an at-risk family member.
As with child care obligations, these types of requests should be considered carefully taking into account the full circumstances, including the nature of the family member’s illness, the employee’s relationship to the family member, and what measures have been implemented at home to prevent transmission of the virus. An employer should also consider the extent to which its COVID-19 Safety Plan at work adequately addresses the employee’s concerns and the potential risk exposure.
Given the complexity of family status accommodations and the potential for abuse if not managed carefully, we recommend that employers consider implementing a policy to provide guidance to employees about the types of requests that may attract family status protection, as well as the possible ways in which employees can be accommodated. This should avoid the potential for abuse and reduce the amount of requests that clearly would not attract a legal duty to accommodate.
A written policy should address the following:
- An explanation of the duty to accommodate family status, up to the point of undue hardship. It is important that employees understand when the duty to accommodate arises from a legal perspective.
- The circumstances that may attract family status protection insofar as COVID-19 related requests are concerned.
- The information and documents an employee must submit with a request for accommodation, which should include at a minimum information about how the employee has attempted to self-accommodate before making a request to the employer and a full and detailed explanation of the family obligation (for example, does it involve a legal obligation and has the employee submitted supporting documents, such as courts orders and Family Law Agreements), and the degree of the interference.
- The role the employee plays in the accommodation process and the search for appropriate accommodations. Employees should understand that the duty to accommodate will come to an end if the employee does not fulfil his/her role in the accommodation process.
- The period for which an approved accommodation will be in place. Employees should appreciate that an accommodation related to COVID-19 will be in place only for as long as is needed to respond to the pandemic.
- Requests or applications for leave under the BC Employment Standards Act will be considered separately.
Employers should also consider updating their existing policies governing medical accommodations. Some COVID-19 related accommodation requests should be made under that policy and not a policy governing family status protection, such as accommodation requests from pregnant employees.
It can be difficult to distinguish between family obligations that trigger a legal duty to accommodate and those which do not. We hope this article sheds some light on the issue. The most important practical advice we can offer is to implement a written policy to not only communicate information and guidelines to employees, but also to assist managers and HR professionals in managing these types of requests.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.