Ontario Municipal Human Resources Association

Economic pressures, rising living costs, delayed retirements, longer life expectancies, and the growing need for dual incomes have all contributed to more employees of all generations experiencing conflicts between work and caregiving.

According to Statistics Canada, in 2023, 34% of parents had to change work or study schedules due to childcare difficulties, 33% worked fewer hours, and 31% postponed returning to work. As careers and lifespans lengthen, more and more Canadians also find themselves in the role of caregivers for aging parents. These realities require flexibility and proactive accommodation from employers.

Historically, some employers might have been tempted to dismiss employees’ challenges with childcare or eldercare as merely “personal matters.” However, the law has evolved, and continues to evolve, to recognize that such responsibilities can engage the human rights protections related to family status. When employees request accommodations due to childcare or eldercare obligations, those requests must be taken seriously and must be contemplated collaboratively.

A recent case of the Ontario Human Rights Tribunal, Aguele v. Family Options Inc., 2024 HRTO 991, involves the applicant, Vera Aguele, a single mother, who worked as a residential support worker for Family Options Inc. She requested changes to her work schedule to accommodate her childcare needs, specifically seeking to avoid late evening and weekend shifts.

Ms. Aguele alleged that her employer failed to accommodate her family status and retaliated by reducing her hours, which she argued led to her constructive dismissal. Although the Tribunal found she had a valid family status claim and suffered income loss, it dismissed her case for failing to meaningfully engage in the accommodation process alongside the employer. The Tribunal found that the employer had made genuine efforts to accommodate her and emphasized that the duty to accommodate is a shared responsibility. Accommodation is a two-way process; employers must offer reasonable, not perfect, solutions and employees must participate.

While Aguele highlights the importance of cooperation in the accommodation process, it also raises a broader question: when do caregiving responsibilities trigger the duty to accommodate? The Ontario Human Rights Code’s protection of family status extends beyond strictly legal obligations and acknowledges that caregiving often involves personal choice. Employees caring for children or aging parents may still be entitled to accommodation, even if their caregiving duties are not legally required. The key consideration is whether the employee faces a genuine caregiving obligation that creates a barrier to equal participation in the workplace.

In Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98, the applicant was employed at a commercial laundry facility and had significant family responsibilities, including caring for three children and elderly in-laws with serious health and mobility issues. To meet these obligations, he requested a family status accommodation to leave work at 2:30 p.m., which the employer initially granted. However, in the fall of 2017, the employer revoked the accommodation without properly exploring alternatives or engaging in the required accommodation process. The applicant continued to leave at 2:30 p.m. and was eventually terminated. The Human Rights Tribunal of Ontario applied the legal test for family status discrimination from Misetich v. Value Village Stores Inc., 2016 HRTO 1229, which considers whether an employer’s decision creates a real disadvantage to an employee’s caregiving responsibilities. The Tribunal confirmed that family status includes both childcare and eldercare obligations. These do not need to be legal duties but must go beyond personal preferences, such as attending a child’s extracurricular activity, and create a real disadvantage in balancing work and caregiving responsibilities. Many caregiving tasks, like preparing meals or accompanying dependent adults with limited mobility, fall within the grey area between legal obligation and personal choice (at paragraph 54). In Kovintharajah, the applicant’s caregiving needs were found to be substantial and essential. The employer failed to show undue hardship or make meaningful efforts to accommodate, and the termination was found to be discriminatory.

Effective management of a multi-generational workplace involves accommodating the different family caregiving obligations employees of all ages experience, from caring for small children to caring for elderly parents (or providing care to both children and parents). Providing appropriate accommodation can enhance recruitment and retention, reduce employee stress and turnover, and increase morale, productivity, and employee engagement.

Written by: Alexa Saleski, Articling Student, Turnpenney Milne LLP