If you are a working parent and are struggling to balance workplace and childcare obligations, knowing about any entitlements you have can help alleviate some of that burden. There are many instances where child-care obligations conflict with work and limit your ability to satisfy the expectations of both your employer and your children. Ontario’s Employment Standards Act outlines when working parents can take a leave of absence from work to care for their children. In addition to sick leave, which totals only 3 days per year, pregnancy and parental leave are likely the most widely known and frequently used types of protected leave. For workers who have recently become parents, and have worked at least 13 weeks with their employer, both pregnancy and parental leave are available to care for newborns. Pregnancy leave can last up to 17 weeks, and parental leave can last up to 63 weeks (61 weeks if pregnancy leave is also taken). Other than pregnancy and parental leave, the ESA also protects several other types of leave, including:
- Family Medical Leave,
- Family Caregiver Leave,
- Critical Illness Leave,
- Child Death Leave,
- Crime-related Child Disappearance Leave,
- Domestic or Sexual Violence Leave,
- Family Responsibility Leave, and
- Bereavement Leave.
Every type of leave requires different lengths of employment prior to being entitled to leave, ranging from 2 weeks to 6 months. While the maximum length of each leave varies, each of the listed types of leave are all provided to workers without pay. Furthermore, many of these other types of leave revolve around either serious medical conditions, death, or criminal circumstances. Consequently, despite these various types of leave, working parents still face significant limitations in securing time off work to care for their children except in emergencies. Beyond ESA protected leaves, working parents may find some other protections through anti-discrimination and accommodation legislation in the Ontario Human Rights Code.
Anti-Discrimination and The Right to Accommodation
Working parents might face discrimination at work because of, among other things, their family status. If this happens, working parents should be aware of their rights under the OHRC which protects workers from discrimination. Additionally, employers have a duty to accommodate workers based on their family status. The duty to accommodate is directly tied to the OHRC’s protections from discrimination. Working parents cannot be discriminated against in employment, and employers must take steps to accommodate workers based on their family status.
In British Columbia (Public Service Employee relations Commission) v BCGSEU (Meiorin), the Supreme Court acknowledged that discrimination can be permitted because of a bona fide occupational requirement (BFOR). A BFOR must be imposed honestly and in good faith and must be reasonably necessary to ensure the work is performed safely and efficiently without unreasonably burdening the workers to whom it applies. However, both Meiorin and the OHRC indicate that a BFOR is unacceptable unless the group affected cannot be accommodated without undue hardship for the employer. Undue hardship itself covers things like the financial cost of accommodation and potential interference with the rights of other employees. In other words, an employer has an obligation to accommodate members of equity-seeking groups, including working parents, unless such accommodation would be excessively expensive or get in the way of other workers’ rights. If there is no undue hardship, employers ought to accommodate working parents.
While employers certainly have a duty to accommodate working parents, this duty is not unlimited. In Peternel v Custom Granite & Marbel Ltd., the issue was raised about how a working parent’s start time might be discriminatory due to childcare obligations. The court did not reject this claim, but merely held that there was insufficient evidence to show she had been discriminated against because of the starting time. While the employer had been lenient about the starting time because of childcare obligations and maternity leave, the Court held that this supportive leniency could not then be transformed into a contractual obligation that bound the employer. Consequently, the contractually outlined starting time was maintained and the discrimination claim rejected.
Termination
Working parents should be aware of how termination operates in Ontario. A worker can either be terminated without cause by being given reasonable notice or pay in lieu thereof or with cause because of worker misconduct. If an employer attempts to terminate your employment for cause because of your childcare obligations, they could very well be engaging in discriminatory conduct, protected under the OHRC. Because family status is a protected ground, and because employers have a duty to accommodate, termination for cause based on a working parent’s childcare responsibilities could be grounds for a human rights-based employment complaint. If you have any questions or need further information, please don’t hesitate to contact us.