Author: Grazia Hanea
March 12, 2021
A recent arbitral award in favour of International Brotherhood of Electrical Workers (IBEW) Local 636 underlines employers’ duty to accommodate on the basis of family status during the COVID-19 pandemic.
The union filed a group grievance against Hydro Ottawa on behalf of four female employees who were denied the reasonable accommodation of working from home on the days that they could not secure childcare arrangements.
In response to the pandemic-related Provincewide shutdown in March of 2020, Hydro Ottawa directed its employees to work from home. In June 2020, the employer announced its plan for a staggered return to working on-site. The return to the workplace policy outlined two options for employees without childcare: take vacation (earned or borrowed) or take unpaid leave. The grievors communicated the difficulty of fulfilling their parental responsibilities in the context of the pandemic and requested that they continue to work remotely on the days that they lacked childcare, as they had done so in the past to the satisfaction of Hydro Ottawa. The employer denied the accommodation requests without having conducted any individualized assessments of childcare needs, preferring to rigidly insist on the use of vacation time or unpaid leave whenever necessary.
Arbitrator Judith Allen ruled that the employer’s “self-imposed rule to not consider any other accommodations” breached the family status provisions under Ontario’s Human Rights Code:
[…] a ‘prima facie’ case of discrimination was established by the fact that a unilateral employer rule was created which targeted employees without childcare, all four of whom were women; announced that they would either lose income or paid vacation, if they chose, to care for their children; and the sole reason they would lose income or paid vacation related to their legal parental obligations interfering with the employer requiring them to return to work on site during the epidemic.
The arbitrator clarified that the appropriate tests for determining what constitutes a prima facie case of discrimination in cases dealing with a unilaterally imposed employer rule are laid out in O’Malley v. Simpson-Sears Ltd. and in Meiorin, both of which are Supreme Court of Canada decisions.
The employer’s failure to accommodate had a detrimental economic impact on employees without childcare – they were effectively forced into “tak[ing] a leave without pay or los[ing]accrued or future paid vacation to provide childcare”. The arbitrator found that the employer was inflexible in refusing to consider any other options for employees without childcare:
They [the grievors] were seeking to continue a balance between their parental responsibilities and their ability to work and earn income. They were trying to avoid an accommodation that would necessarily have an adverse impact upon their financial situations and upon their future ability to take a vacation from the stress of Covid-19 and work. In refusing to even consider other choices, the employer effectively refused to engage in the accommodation process.
The arbitrator observed that it was unreasonable for the employer to require employees who had no reasonable childcare alternatives (e.g., daycare, school camps) to place their children with aging parents or neighbours while social-distancing and “bubble” guidelines were in effect.
This arbitration decision is a victory for employees with parental responsibilities, in the specific context of the COVID-19 pandemic.
If you have any questions regarding the duty to accommodate or family status obligations, we encourage you to contact Sogol Naserian or any of the lawyers at Shields Hunt Duff Strachan.