Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: When family and work obligations collide

What happens when an employee’s family responsibilities conflict with his or her responsibilities at work?

The answer is more involved than you might think.

The Employment Standards Act of BC provides employees with the ability to take family responsibility leave.

Employers must provide employees with up to five days unpaid leave per year to meet family responsibilities related to the care, health or education of a child in the employee’s care, or the health of a family member of the employee’s immediate family.

Immediate family means the spouse, child, parent, guardian, sibling, grandchild or grandparent of the employee, and any person who lives with the employee as a member of the employee’s family.

It is a good idea for both the employee and employer to document family responsibility leave taken, in case a dispute arises later.

What if five days per year is not sufficient?

The Human Rights Code of British Columbia prohibits employers from discriminating against employees on the basis of a number of factors often referred to as protected grounds. The protected grounds include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or certain types of offences.

There are many more nuances, but basically once an employee is within a protected ground, the employer is not permitted to treat that person adversely because of a protected factor, such as family status. There is an exception for bona fide occupational requirements, which is a topic unto itself.

In recent years, family status has been getting some attention.

So, what exactly is family status?

It is not defined in the Human Rights Code. It like other protected grounds, is interpreted broadly.

In B v. Ontario (Human Rights Commission), the Supreme Court of Canada said family status includes both the absolute status of being a family member (a father, mother, sister, etc.) and the relative status of being in a particular family relationship.

Generally, it includes childcare responsibilities. Although there are fewer cases, it might also include caring for aging parents or other adult family members.

In order to avoid discriminating against the employee, the employer must accommodate the employee’s requests, up to the point of undue hardship.

Undue hardship is not defined in the Human Rights Code. Employers are expected to absorb some hardship in an effort to accommodate. It’s when the hardship becomes undue that the duty to accommodate ends.

For example, an employee may request a change in work shifts because of family responsibilities. The employer should accommodate this, if at all possible.

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However, if there is insufficient staff to meet the extra demand, thus placing added stress on other employees and hiring more staff is not financially feasible, the employer might have reached the point of undue hardship. At this point, the employee will have to make other family arrangements in order to continue working in that job.

If an employee is unable to perform his or her duties at work because of family status, and either the job requirements to be performed are bona fide occupational requirements or accommodation would cause the employer undue hardship, the employer may refuse to accommodate the employee’s needs. If all else fails, it is possible that an employer in this situation might consider disciplining the employee.

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Though an employer considering this ought to tread carefully.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca . Check out our website, www.inspirelaw.ca.

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