Saturday, 5 January 2013

Are New Parents Entitled to Accommodation?

Do employers owe a duty to accommodate parents returning from parental leave?

The provocative question was posed by returning-to-work father Adam Gorley in his January 4, 2013 blog post for First Reference Talks titled Returning from parental leave and accommodating family status.

In his post Mr. Gorley takes the position that:
While [Ontario] employment/labour standard legislation providing for parental leaves of absence is silent on accommodation, courts across the country have in recent years made it clear that employers must assist employees who are caring for family members, young or old. Indeed, failure to accommodate an employee’s family status may be a contravention of human rights law.

I agree with Mr. Gorley’s conclusion.

Right to Return to Former Position

Before getting too far ahead of ourselves, let’s first look at the right to return to one’s pre-leave position. I repeat this information primarily on account of the number of google searches that lead to my blog such as:

  • i was dismissed after returning from maternity leave
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  • can an employer fire you while on mat leave in ontariocan employer end contract because of mat leave ontario
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The above is just a sample of some of the search strings that have lead to hits to this blog in the past few months.

In short, in general, pursuant to Part XIV of the Ontario Employment Standards Act, 2000 a female employee, working in Ontario, who becomes pregnant has the right to take up to 17 weeks of pregnancy leave, and both parents, once the child is born or adopted, have the right to take up to 35 weeks of parental leave. There are of course some conditions on when employees are eligible to take such leaves, and the law imposes some obligations on employees, (e.g. a requirement to provide a doctor’s note confirming the employee’s due date – if asked – s. 46(4)(b)), but in general those are employees’ rights to take leave.

More important than the right to take leave however is the right to return, or the right to reinstatement.

Section 53 of the ESA provides that: 
Upon the conclusion of an employee’s leave under this Part [Part XIV], the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

Subsection 53(3) protects the employee’s wage rate and the right to salary increases.
A further implication of the right to take pregnancy and parental leave is set out in section 51 of the ESA. Generally, section 51 provides that, while on leave an employee continues to participate in all those benefit plans to which the employee would otherwise be entitled. Which means that if the employee was entitled to health, dental, or prescription drug benefits while an active employee, they remain entitled to participate in the plans providing those benefits while on leave.

So, to repeat, if an Ontario worker becomes pregnant, and she has been employed by her employer for at least 13 weeks prior to her due date she is entitled to an unpaid leave of absence from employment pursuant to Part XIV of the Ontario Employment Standards Act, 2000. If the employee’s agreement provides for a ‘top-up’ of salary beyond Employment Insurance Maternity and Parental Benefits, then that agreement will have to be honoured. In all cases, enrolment in the employer’s benefit plan must be maintained throughout the employee’s leave of absence.

More importantly, once the employee is ready to return or once her statutory leave expires, the employer must reinstate the employee to the position the employee most recently held with the employer. If the position no longer exists, then the employee has the right to be reinstated to a comparable position. In either case the employee is entitled to the greater of the wage rate that she was earning before leave and the rate that the employee would be earning had she worked throughout the leave.

Employers found to violate these rules can be subject to very serious consequences from the Ontario Ministry of Labour, and as explained in my earlier post Fired After Maternity Leave, the employee may have the right to be reinstated to her former position with an order for lost wages.

Duty to Accommodate

Returning to the question initially posed in this post, once the employee returns does the employer owe that employee any duty to accommodate their new status?

As Mr. Gorley relates in his post:
After 20 weeks of parental leave, I’m back in front of my computer, checking my email, catching up on workplace changes, putting together a schedule, recalling whether we use the serial comma (only when necessary) and generally getting back into the swing of things. It’s a strange feeling to return to a job after such a long break, and something I’ve not experienced before… I certainly won’t claim to have post-traumatic stress, but I do wonder how I’ll perform: whether I’ll be able to focus on work and keep up, whether my work will be as good as it was before.

I suspect that Mr. Gorley’s reaction to his new found situation is not atypical. Babies are infamous for their erratic and disruptive sleep patterns and a very few jobs demand little by way of mental focus. So, as Mr. Gorley asks, perhaps somewhat out of self interest, must his employer accommodate him?

In order to be afforded accommodation in one’s employment, an employee must first establish a right to such accommodation. The right to be afforded accommodation in the employment context is, in Ontario, guaranteed by the provisions of the Ontario Human Rights Code. As the Supreme Court recently observed in its decision in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), canvassed by this blog in the post School District Learns Lesson in Accommodation:
to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.  Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes.  If it cannot be justified, discrimination will be found to occur. (Para. 33)

While the Supreme Court of Canada’s comments were made with respect to British Columbia’s legislation, the Ontario Human Rights Tribunal has already expressly adopted it. (See e.g. MacKinnon v. Celtech Plastics Ltd., 2012 HRTO 2372)

So, is having a baby at home “a characteristic protected from discrimination under the Code?” Arguably.

Section 5 of the Code provides that:
Every person has a right to equal treatment with respect to employment without discrimination because of… family status…

Does “family status” mean having a baby at home? I would argue that it does. And while simply having a baby does not afford every Ontario worker a blank cheque to make requests of his or her employer for “accommodation,” employers need be mindful that if a request for accommodation is made, pursuant to the Supreme Court of Canada’s approach in Moore, the employer has an obligation to at least consider whether the request can be accommodated without undue hardship on the employer.

UPDATE: ADDED FEBRUARY 5, 2013, in a decision released January 31, 2013 the Federal Court in Fiona Johnstone v. Canada Border Services, 2013 FC 113 held that, under the Canadian Human Rights Act, "family status" includes "parental childcare obligations." (Para. 6)


The takeaway for employees who are considering having children is that, generally, in Ontario one’s job is protected. On the second point of whether an employee is entitled to accommodation once the child is born, it would appear that the answer is yes.

If you have any further questions about your leave or your rights, then I would strongly recommend seeking out legal advice specific to your situations. I, or any of the employment lawyers at Kelly Santini LLP would be happy to be of assistance to you.

The takeaway for employers is that the law imposes some serious expectations on employers. Accommodation is serious, if vexing, and if you have any questions or concerns about meeting your legal obligations prudence would dictate seeking out professional legal advice. I, or any of the employment lawyers at Kelly Santini LLP would be happy to be of assistance to you.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.

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