29 Apr Accommodations for Elder Care Duties in Ontario – Your Legal Rights
Retiring Baby Boomers are Changing the Workforce
No other generation has had quite the same impact on the social, cultural and economic fabric of Canada as the Baby Boomers. These 9.6 million Canadians born between 1946 and 1965 have dominated the employment landscape for the last 50 years. But today, even the youngest Boomers are approaching retirement age. For many of their adult children, this is bringing new and unexpected challenges and demands into their own work lives.
The aging of the Boomer population is proving to be an important employment issue as younger generations take on the responsibilities of supporting this generation through the challenges that come with old age.
Many working adults now find themselves in the difficult position of having to care for their aging parents. This ‘sandwich generation’ faces unprecedented challenges as they manage the increasingly complex demands of work, child and elder-care responsibilities.
Legal Protections for Family Status
The demands of parenthood have long been acknowledged by employment laws in Ontario which require employers to accommodate the needs of parents to care for their children. The Human Rights Code gives all workers the “right to equal treatment with respect to employment without discrimination because of family status,” and defines family status as “the status of being in a parent and child relationship.”
Usually, family status discrimination has been applied to women re-entering the workforce following maternity leave. However, this is changing as the needs of aging parents require workers to seek accommodations for these elder care responsibilities.
Fortunately, case law has affirmed that failure to reasonably accommodate elder care duties can amount to discrimination on the basis of family status.
Elder Care Duties and Discrimination on the Basis of Family Status
The 2012 case of Devaney v. ZRV Holdings highlights the importance of the employer’s duty to accommodate employees seeking accommodations for their elder care responsibilities.
In this case, the plaintiff, Mr. Devaney, had worked for the architecture firm ZRV Holdings since 1982. In 2009 Devaney had requested to work from home to allow him to take care of his ailing and elderly mother. His request was denied. After Devaney made the decision to nevertheless work from home, he was fired. During the time that Devaney had worked from home his work output has remained consistent. Devaney filed a complaint with the Human Rights Tribunal of Ontario and was eventually awarded $15,000 for discrimination on the basis of family status.
What Counts as Discrimination?
Family status protections for elder care responsibilities are only applicable if there is a conflict between your work obligations and your duty to provide the vital necessities of life to your parent.
The Ontario Human Rights Tribunal distinguishes between the preferences and needs of employees with caregiver duties. Employees must therefore demonstrate that they have significant and necessary elder care responsibilities and that their working arrangements interfere with their ability to meet these elder care obligations.
Implications of Elder Care Duties for Ontario Employers
Employers need to consider the unique needs and circumstances of each employee. You should take accommodation requests seriously. You are allowed to ask your employee for reasonable information with regard to the need for accommodation and ask them what measures they might take to mitigate the conflict.
Next, upon determining the legitimate accommodation needs of your employee, you must accommodate them to the point of undue hardship. This may mean, for example, adjusting their schedule or allowing them to work offsite if possible.
KCY at LAW is here to help
If you are an employee or employer concerned with your rights and responsibilities as they relate to elder care duties, the professional employment law team at KCY at LAW is here to help.