Duty to Accommodate… A Pandemic?

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The COVID-19 pandemic has raised numerous legal issues. As society adjusts to a new normal, many employers are asking about their duty to accommodate employees when it comes to the issues of family status and health.

The Test for Prima Facie Discrimination and the Duty to Accommodate

In the leading decision Moore v. BC (Education), 2012 SCC 61 (“Moore”), the Supreme Court of Canada held that to establish prima facie discrimination, complainants must show that:

  • They have a characteristic protected from discrimination under the BC Human Rights Code (the Code);
  • They experienced an adverse impact in the protected setting; and
  • The protected characteristic was a factor in the adverse impact. (para 33)

Once a complainant proves these three things, the burden shifts to the respondent to prove that it accommodated the employee to the point of undue hardship. If so, the respondent’s conduct is justified and deemed not to be discriminatory.

Determining what constitutes “undue hardship” in any given situation involves a multi-pronged analysis and common sense approach that evaluates a variety of factors. The test is not whether it is “impossible” to accommodate the person, but whether doing so would occasion undue hardship.

Duty to Accommodate — Family Status — British Columbia

The test for prima facie discrimination as articulated in Moore is intended to apply across the country as the first step in the discrimination analysis, regardless of the type of discrimination alleged.

Despite this, the leading case on family status discrimination in British Columbia remains the BC Court of Appeal’s decision in Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). In Campbell River, the BC Court of Appeal set out a different version of the prima facie discrimination test for family status:

“…a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee…” (para 39)

This test is more stringent than anywhere else in Canada and has been criticized for diverging from the Moore test for prima facie discrimination.

Nevertheless, the BC Court of Appeal doubled down on Campbell River in the more recent Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46. The court held that Mr. Suen’s temporary relocation for work was not a “serious interference with a substantial parental or other family duty or obligation” at para 32:

“…the facts alleged by Mr. Suen are not capable of satisfying the second step of the Campbell River test. Those facts are only capable of establishing the undisputed fact that he is a parent. While Mr. Suen’s desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents. There are so many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations for their children. Nothing in Mr. Suen’s complaint or affidavit suggests his child would not be well cared for in his absence.”

With respect to the first part of the Campbell River test — that there be a change in a term or condition of employment — the BC Human Rights Tribunal has repeatedly confirmed, albeit in preliminary Application to Dismiss decisions, that a change by the employer is not necessarily required where adverse effect discrimination is alleged: see Haggerty v. KSCL and others, 2008 BCHRT 172 at paras 16-17.

How, then, does the Campbell River test jive with employees’ family obligations arising from the pandemic?

With the gradual re-opening of the economy and children returning back to the classroom amid a growing second wave of infections, employers are faced with the difficult task of determining the extent of their obligation to accommodate employees’ childcare needs.

The starting point for this discussion is the test for prima facie discrimination. Where the employee has a familial obligation that conflicts with their workplace obligations, the employee has a protected characteristic — “family status” — and perhaps is experiencing an adverse impact in employment. The adverse impact must be due to the employer imposing a term or condition of employment that results in a serious interference with a substantial parental or other family duty or obligation.

Given the continually evolving pandemic and patchwork of shifting government restrictions across Canada throughout the year, many employers were forced to rethink scheduling practices or have asked employees for patience and considerable flexibility to manage operations in a challenging time.

These changes may constitute such a “change” as required by Campbell River. Alternatively, if the employer has not “imposed a change”, the employee may nevertheless be experiencing an adverse impact where the employer is rigidly requiring adherence to its regular work schedule, despite sudden childcare and other familial obligations arising from, for example, the shutdown of a school or restricted access to a long-term care facility.

Where a school has reopened, an employee’s request for accommodation based on a personal decision to keep their child or children home instead of returning them to school would likely be heavily scrutinized. A mere preference based on the employee’s general discomfort is likely an insufficient foundation for an accommodation request, especially if public health officials suggest that sending children to school is safe. Employers can rely on the directions of public health officials in the absence of legitimate reason from an employee.

Truly legitimate reasons to request accommodations could include:

  • A child who must be kept home from school because the child is immunocompromised;
  • A child who must be kept home from school to protect another household family member with chronic respiratory disease;
  • Increased elder care responsibilities where, to protect the health of an elderly family member, an employee must assume all care responsibilities that were previously shared between non-household family members; or
  • Where an employee’s family member is sick with COVID-19 or otherwise required to self-isolate due to suspected exposure to the virus.

Ultimately, each fact scenario must be considered on a case-by-case basis due to the individualized nature of the duty to accommodate.

The employer has a right to confirm the employee’s need for accommodation, and the employee, a corresponding obligation to reasonably participate in the accommodation process. Where legitimate needs are established, the duty to accommodate may compel the employer to provide a leave of absence, reduced work hours, remote work or an alternative work schedule.

As of the time of writing (Oct. 19, 2020), the COVID-19 pandemic has not yet yielded decisions in the family status accommodation context to give us concrete guidance. We therefore do not know with certainty how decision makers will review these situations.

Duty to Accommodate — Health

The British Columbia Office of the Human Rights Commissioner has taken the position that COVID-19 is a form of disability under the law. Discrimination on the basis of disability is prohibited under the Code. As such, employers have a duty to accommodate to the point of undue hardship under the Code in regard to an employee with, or suspected to have, COVID-19. The analysis for that is the same as the above.

Notably, the BC Employment Standards Act (ESA) was amended by the Emergency Standards Amendment Act (no. 2). One of the amendments introduced was a temporary COVID-19-related leave set to expire at the conclusion of the COVID-19 emergency (section 52.12 of the ESA). It provides unpaid, job-protected leave to an employee who is quarantined, in isolation, needs to be away from work in order to take care of a child or children due to school, daycare or similar facility closures, or is impacted due to travel restrictions related to COVID-19.

Employees are allowed to take this job-protected leave for any of the reasons above for as long as they need. This indefinite leave is unusual, but actually accords well with the employer’s duty to accommodate.

While employers are prohibited from requesting COVID-19 medical notes from employees taking this leave, employers may request other “sufficient proof” regarding the COVID-19 related circumstances. As “sufficient proof” is not yet clearly defined in law, employers may wonder what they can ask an employee without infringing this provision of the ESA.

While we have little jurisprudence again to guide us, it seems likely that an employer could ask the employee if they are under quarantine or self-isolation at the direction of a public health official or medical practitioner and for how long, or if their child or someone else in their household is in a high-risk category. While typically asking for a diagnosis is prohibited, confirming test results for COVID-19 — particularly where most employees can access them online — may not be. In fact, doing so may align with the employer’s duty to contact trace.

Conclusion

Cases involving the effects of the pandemic in the family status accommodation context have not yet been released, so we do not know with certainty how they would be determined. What is clear is that employees may try to advance complaints in the areas of family status and disability. Ultimately, being flexible and providing options to employees who have legitimate reasons would engage the employer’s duty to accommodate to the point of undue hardship. Where employees are voluntarily keeping their children home from school purely out of personal preference, an employer likely will not be required to accommodate those employees.

On the health side, employers are not allowed to request medical proof of COVID-19, but may ask questions of the employee to manage the workforce. In these difficult times, providing continued flexibility in schedule and remote working options can assist in managing a workforce while accommodating health issues.

Interested in learning more about HR Law? 

CPHR BC & Yukon will be hosting the Legal Symposium 2021 Series live online. Tune in for three excellent symposiums, for one great price. Expert speakers include:

  • Jennifer Kwok, Overholt Law LLP
  • Preston Parsons, Overholt Law LLP (author of this article)
  • Scott J. Marcinkow, Harper Grey LLP 
  • Melanie Samuels, Singleton Urquhart Reynolds Vogel LLP
  • Veronica Ukrainetz, Ukrainetz Workplace Law Group
  • Pamela Connolly, Ukrainetz Workplace Law Group
  • Melanie Booth, Kane Shannon Weiler LLP

Symposium dates are January 28th, February 4th and February 18th form 9:00 AM to 1:00 PM. 

 


 

Preston Parsons is an partner at Overholt Law who has practiced labour relations law, employment law, and human rights law for more than 10 years. He would like to thank Kai Ying Chieh and Gurpreet Gill for their hard work researching and assisting with this article.

For the latest HR and business articles, check out our main page

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