By Parisa Nikfarjam

Recently, we’ve seen an increase in employees who are feeling the squeeze between childcare and eldercare responsibilities. These situations stem from the rise of the “Sandwich Generation”: a generation created as a result of the aging population and the postponement of having children. A recent national study (the “Study”)¹ on balancing work and caregiving, suggests that work-life balance comes at a great cost to members of the Sandwich Generation and their employers.

The Study found that 63% of caregivers report stress, anxiety, and frustration, and “are getting worn down by the demands on their time and lack the resilience to emotionally separate the work-life domains.”²

We are finding that more and more of our employer clients are also affected by the strain on the Sandwich Generation. In fact, the Canadian Mental Health Association estimates that employee burnout costs Canadian businesses an estimated $12 billion every year in health claims, lost productivity, and absenteeism.

The Legal Implications of the Sandwich Generation
In order to avoid or lessen the costs associated with the Sandwich Generation, we often advise clients to take a proactive approach when managing them, particularly with respect to the following issues:

Family Status Accommodation
Family status, defined as “the status of being in a parent and child relationship”, is one of the prohibited grounds under the Human Rights Code (“Code”)³, and has over the past year received renewed attention after the release of two significant decisions.

The first was the landmark decision of AG (Canada) v. Johnstone,⁴ which involved the denied request of an employee for a fixed-shift schedule to accommodate her childcare needs. The Federal Court held that requests for childcare accommodations stem from genuine need and are not a result of lifestyle choices, requiring employers to canvass accommodation options.

While it did not receive the same fanfare as Johnstone, Devaney v. ZRV Holdings Limited⁵, a case from the Ontario Human Rights Tribunal, stands for the proposition that an employer has a similar legal obligation to accommodate an employee who has eldercare responsibilities.

The employee in Devaney was dismissed after 27 years of service as a result of the absences he incurred to take care of his disabled mother. The Tribunal found that the employee had been discriminated against due to the employer’s strict attendance policy and the fact that the employer failed to engage in a dialogue with him about his caregiver needs.

We know from Johnstone and Devaney that caregiver responsibilities are recognized and protected under the Code. So when we work with our employer clients, we remind them to have a meaningful dialogue with the employee requesting accommodation so as to assess the scope of the employee’s caregiver responsibilities and canvass the options that can best meet his or her needs. The court decisions also remind employees that accommodation is available provided they have a caregiver need as opposed to a preference or choice in caregiving options. Again, working with our employer clients, we will review the fact that employees should not expect the ideal response to their requests for accommodation, and that they should be aware that accommodation is a two-way street, requiring them to provide their employers with information that will assist in identifying reasonable accommodation.

Absenteeism and Discipline
With a Sandwich Generation employee, absences may be connected to family obligations, stress, or mental health issues. In fact, the Study estimates that 57% of caregiver employees surveyed reported high levels of stress and 36% reported high levels of depressed mood. As a result, we remind, if not assist, employer clients to first gauge whether certain behaviours, symptoms, and requests may be related to a disability, mental health condition, stress, family obligations, or some other legitimate, legally-recognized reason for accommodation before they take disciplinary action against an absent employee. By way of example, we advise our employer clients to obtain relevant medical documents and expert advice. We also advise and/or assist them in creating and maintaining an accommodation process.

However, we remind our clients that not every absence needs to be accommodated until the employee no longer requires the accommodation or resigns. If a disability or obligation is such that the operation of the business is hampered excessively, or if an employee remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test for undue hardship and will no longer be required to accommodate the employee. However, this assessment and any consequent steps should be taken with caution, ideally with the assistance of legal counsel and after well?documented accommodation steps have been attempted.

Increased Workplace Conflict
With increased levels of stress and mental health issues plaguing the Sandwich Generation, employers will need to be aware of an increase in workplace conflict. Indeed, Canadian workplaces have identified a 66% increase in aggressive acts within their workplaces over the past five years⁶. The number of times we are asked to either conduct a workplace investigation into, or otherwise advise on, a workplace conflict seems to reveal the prevalence of these issues as well as their costs for an organization, particularly when these issues are not addressed at an early stage.

Despite legislative and judicial efforts to curb harassment and violence, workplace conflict is still rampant, even if it has not escalated to the level of workplace harassment or violence⁷. A recent Harvard Business Review article, “The Price of Incivility”⁸, reported that over the past 14 years, 98% of workers experienced uncivil behaviour. Aside from overt retaliations, employees who experience workplace incivility are less creative and less likely to stay. Half of these employees also deliberately decrease their effort or lower the quality of their work⁹.

Given the costs associated with workplace incivility and the increased legal attention on workplace harassment and violence, ensuring that the stress of the Sandwich Generation does not spill over into the workplace is crucial. For this reason, we often provide training to our employer clients on how to identify the signs of workplace conflict, and take preventative measures by conducting internal training on these issues or conducting prompt workplace investigations when conflicts arise.

Strategies to Manage the Sandwich Generation

Despite the legal challenges, employers keen on attracting, retaining, and engaging employees will need to adjust their strategies by understanding and accommodating the various dimensions of the Sandwich Generation. Here are a few suggestions which we have found to be of particular assistance when addressing these challenges:

• Consider whether accommodation is required to address caregiver needs;
• Canvass accommodation options, including modified work hours and telework arrangements;
• Implement an attendance management policy that takes into consideration absenteeism based on legitimate human rights grounds;
• Ensure that all managers are trained to understand the duty to accommodate and how this may present itself in the workplace in connection with mental health issues;
• Request medical documentation for disability or stress-related leaves of absence;
• Obtain expert opinion or advice where needed; and
• Through regular training on the workplace harassment and violence policy, and by requesting that each employee re-commit to the principles of the policy on a regular basis, remind employees that harassment and violence are not tolerated in the workplace.

When we begin working with an employer client to manage difficult issues like those identified above, they are often surprised to learn about the legal avenues open to them. With careful planning and advice, employers can manage these issues as they present themselves in the workplace and minimize legal liability.

Parisa Nikfarjam is an employment lawyer with Rubin Thomlinson LLP, a boutique law firm specializing in employment law and human rights issues. Parisa assists her clients in navigating challenging workplace issues, including accommodation, employee discipline, workplace harassment and violence, and termination. Parisa writes and speaks regularly on various employment law topics, and is an executive member of the Labour and Employment section of the Ontario Bar Association.

This article was originally printed in LEAD—Adecco Canada’s biannual employment magazine.