Question: My manager recently advised me that they want me to start working a 9:00 to 5:00 shift. For the past year I have been working from 8:00 to 4:00. Working these hours allows me just enough time to be able to pick up my child from the day care before it closes at 4:30. I told my manager that the new work schedule is not possible for me given my family situation, but they are insisting. My question is whether I have the right to refuse and what my rights are.
Answer: For your situation, you have had an established “past practice” (working 8-4 for the past year) along with terms and conditions of employment. Both you and your manager agreed to a work schedule with the Employer knowing that you have family needs to be met. You’ve worked within those terms and conditions for the past year and established a routine that isn’t easy to change. Your family must come first and Employers are required to accommodate the needs of their employees – particularly when they’re aware of those needs at the time of hiring or establishing terms and conditions of employment.
The Canadian Human Rights Act defines “family status” and the duty to accommodate the needs of families and to allow employees to work free of practices that discriminate or cause them stress:
38. How far does an employer have to go to accommodate childcare and eldercare?
Employers have the same responsibility to accommodate an employee’s family status as they do for other protected characteristics, such as disability or religion. This means that employers must accommodate employees who are differentially affected by workplace standards, policies or practices because of their family status. Responsibilities that flow from same-sex relationships are protected as “family status” in the Act.
Examples of accommodation based on family status include:
- allowing for an extension of a maternity or parental leave;
- allowing for leave to care for sick family members;
- allowing for alternative work arrangements, such as compressed hours, job sharing, part-time work, flexible hours and flexible place of work arrangements;
- not penalizing employees who cannot accept overtime work because of special needs relating to family status;
- adapting work and service procedures to reflect the diversity of family configurations; and
- providing suitable options to allow for breast feeding as required.
The employer must accommodate an employee’s family status requests up to the point of “undue hardship”.
The employer’s responsibility to accommodate an employee based on family status will be affected by how the employee shoulders the family responsibility. For example, a single mother is probably the only person who can care for a child too sick to go to school.1
Employers do not have to provide paid leave to employees who need to be away from the workplace during regular working hours, unless paid leave is provided for similar matters unrelated to family status.
You may wish to discuss the information above with management and see if there isn’t another solution to the problem. Perhaps there is an alternate way to cover the hour between 4 and 5pm. Your union Local is also available to help if you are not able to come to an arrangement that works for your situation.
1 Brown v. M.N.R., Customs and Excise, (1993), 19 CHRR D/39 (C.H.R.T.)