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Accommodating childcare issues

Sometimes an employer has to accommodate childcare issues. Before you start drafting a letter to your employer demanding new hours that better fit your daycare schedule, however, remember that the details are in the fine print. Joy’s story makes that point.  
Joy was a train conductor whose home was just outside of Jasper, Alberta. She worked out of the Jasper train station. After six years of employment, in 1997, she was laid off.
Joy was in a union and even though she was only called occasionally to cover emergency work, she continued to accumulate seniority. In 2005, her employer had a shortage of conductors at the Vancouver terminal and called Joy back to work for a temporary posting. They wanted her to report to the Vancouver train station as was their right under the collective agreement.
Joy wrote to her employer and explained that she had a six-year-old in kindergarten and a 21-month-old. She had no immediate family nearby to help to care for the children and her local daycare only covered standard business hours.
Joy’s husband was also a railroader and would be out of the house for 14 to 24 hours at a time. Joy wanted to be relieved on compassionate grounds from having to report to the Vancouver train station but still maintain her employee status and accumulate seniority. The employer gave her a four-month extension but told her that if she didn’t show up in Vancouver she would be terminated. She didn’t show up and they ended her employment.
Every human rights code in the country prohibits discrimination in employment based on “family status”. The court in this case interpreted family status to mean being in a parent and child relationship and includes, sometimes, accommodating childcare obligations.
Once that decision was made, it was up to Joy’s employer to prove that it would have been an undue hardship for them to accommodate her request to be relieved of the obligation to report to work.
The funny thing was that the employer had a policy that said that they would accommodate these kinds of situation if there was a satisfactory reason. The employer, however, refused to meet with Joy to discuss the issue and didn’t present any evidence at the hearing of why it was so difficult to simply grant Joy’s request and call somebody else back to work instead.
The employer argued that it was a parent’s personal choice as to how to meet childcare obligations and that the drafters of the human rights legislation could not have intended that an employee could choose to live in a location with few childcare options and then require the employer to accommodate that choice.
Ultimately it was found that CN should have engaged in discussions, especially since it was thought that they were the ones with the information on working conditions in Vancouver and housing accommodations that might be available for her and her children.
 I believe Joy won because it was obvious that there were lots of other out of work train conductors waiting to be called back and the employer was just being stubborn.
It is always going to be much harder for a large employer to prove undue hardship than a smaller employer. I truly doubt the day will come when an employee who has always worked from 8 a.m. to 5 p.m. can have a child and demand an alteration of hours because of childcare issues. I think that would be true regardless of the size of the employer.
The impact on other employees of accommodating particular schedules would also be considered. The three shift supervisors with children are not going to be able to make the other seven shift supervisors in a factory  work all the weekend and night shifts because it doesn’t fit their schedule.
Soon will come the cases where adults are requiring accommodation to be able to take care of their aging parents. After all, that is another aspect of being in a parent and child relationship. There are good public policy reasons to support workers taking care of ageing parents or children, but where will we draw the line? Are the people without children or elderly parents going to be stuck with the bad work schedules?  Might that become a form of discrimination itself?
Joy’s case is unique and interesting, but I am not sure that it is the tip of any world changing iceberg.
As published in the Hamilton Spectator, March 18, 2013
Ed Canning
Ed Canning
P: 905.572.5809