Is balancing work and kids a human right?

How far do employers have to go when accommodating personal lives? Case involving Canada Border Services Agency provides more insight

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Work-life balance is a popular buzzword in employment circles. Top employers are being recognized for the efforts they make to attract and retain top talent by being flexible in accommodating the demands of the personal lives of their employees.

And workers in high-demand sectors are picking and choosing employers who make the best effort to allow them to enjoy life. But while having that kind of flexibility can make an employer a top employer, there are costs to doing it. And just how much is an employer required to do to accommodate personal demands on an employee’s time?

We have protections for employees wanting to start a family with employment insurance maternity and parental leave benefits, which generally give parents up to a year between them to take time off to care for a baby while receiving a good chunk of their pay. Employers are required to keep a job open for an employee who takes maternity or parental leave. But what happens when that leave is over? Caring for children can be very demanding of parents’ time. How much should an employer bend so an employee can more easily meet those demands?

Family status is recognized in human rights legislation as a protected ground from discrimination, right alongside things like race, sex, sexual orientation, creed, ethnic background and place of origin. But to what extent? It’s been determined in the past that an employer should only be required to accommodate special parental demands, like caring for a child with a disability. However, more recent cases have moved towards including normal parental duties as requiring accommodation efforts.

Earlier this month, an arbitrator called the Canada Border Services Agency (CBSA) on the carpet for not considering accommodation of an employee who had two young children. The employee, a border services officer at Toronto’s Pearson International Airport, worked rotating shifts. She ended up having two children and with each one she requested regular days with daytime shifts so she could find adequate child care. However, the agency refused to consider the request as it had an unwritten policy not to accommodate employees with normal child care demands.

The agency was well aware of family status as a protected ground of discrimination, but didn’t think it applied to normal parental obligations. CBSA didn’t see the need to expend the extra cost and effort for what amounted to a lifestyle choice by the employee.

An arbitrator set the agency straight, finding accommodation of the employee wouldn’t have put the agency past the point of undue hardship and it should have at least examined the possibility. Due to the importance to society of raising children, the arbitrator felt accommodating normal parental needs was necessary if it was possible for the employer to do.

Parents have long had to balance work demands and raising their children. Many employers who go the extra mile to help employees balance those demands should be applauded. But with family status reaching prominence as a ground for discrimination, should employers be forced to go that extra mile?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit www.employmentlawtoday.com.

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