childcare

Human Rights Tribunal Rules Burden on Mother to Consider Non-Corporate, Home-Based Daycare as Solution to Work Schedule/Childcare Conflict

macisaacandcompanyLeave a comment

child plays with wooden blocks with letters on the floor in the room a little girl is building a tower at home or in the kindergarten.

In reasons issued on June 5, 2020, the BC Human Rights Tribunal dismissed the complaint of a Pacific Blue Cross (PBC) employee who alleged that her employer failed to accommodate her in relation to her family status.

The complainant was a team leader in PBC’s customer service department. She had just returned from maternity leave, which was already cut short due to a childcare issue.

Childcare can be difficult to find in BC. As parents of young children know, you often need to put your child on a childcare wait list, especially if you are looking to get them into childcare as an infant. It can take over a year to get off of a wait list. As a result, some parents in BC put their children on childcare wait lists before they are even born. Once your child’s turn on the wait list comes up, you need to choose to either put them in care or lose your spot.

Thus, when a spot became available for the complainant’s child at 10 months old, she decided to take the opportunity to get him into the facility and go back to work for PBC. Her office was in Burnaby and her home and childcare facility were in Langley. With traffic, the commute can be between 45 and 90 minutes.

The complainant’s work schedule prior to her maternity leave ended at 4:30pm and she understood it would continue to end at that time when she returned. Her son’s childcare required pick up by 6:00pm.

When she returned to work, she was told that her schedule would change to require her to work until 5:00pm for one week every four weeks. The complainant told PBC that she could not do this because it would not allow her time to reliably pick up her child by 6:00p.m. She expected PBC to accommodate her childcare schedule. They did not. As a result, she filed a human rights complaint asserting that she was discriminated against on the basis of her family status.

Tribunal Member Norman Trerise noted in his reasons that the law puts the onus on a the complainant to prove that the employer changed a term or condition of the employment and that the change seriously interfered with a substantial parental duty or obligation. Mr. Trerise held that the complainant did show there was a change to a term of the complainant’s employment. He held, however, that the change did not seriously interfere with a substantial parenting duty or obligation.

According to the member, this was because the complainant did not do enough to explore alternate childcare options. He held as follows:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which PBC imposed on the TLs. She eliminated, without any visits to ascertain their suitability for her child’s needs, all home‐based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre‐conceived idea that
“corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Further, he held:

[66] Instead of searching for a suitable daycare her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules for TLs and alternatively a search for alternate employment.

…

[68] Ms. Ziegler has made it clear in her evidence that she felt it was unfair for PBC to put her in the position where she must alter the childcare arrangement she had in place. In particular, she was not prepared to consider a non‐corporate, home‐based daycare as a possible solution. Many parents might react similarly, particularly given the age of her child. The test for discrimination on the basis of family status under the Code, however, makes it clear that more is required.

This decision provides a lesson for parents alleging discrimination in failing to accommodate their childcare schedules in the future. As per this decision, parents need to show that they have made an effort to find a solution to the problem. This could mean exploring alternative types of childcare facilities, an alternate schedule with the daycare provider you have, or an alternate schedule with your spouse and their employment. Even if your efforts are fruitless because you still could not solve the problem, the point is to show that you tried.

Covid-19 Raises Employment and Human Rights Concerns Across BC, Government Announces Novel Protections

macisaacandcompanyLeave a comment

From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.

Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.

On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.

Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.

Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.

Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.

Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.

Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.

From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.

The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”

Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.

One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.

Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.

The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.

Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.

Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.

MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.