Expecting employees to return to the workplace this fall? What Alberta employers should know before denying family status accommodation requests.

The Alberta Court of Appeal (the “ABCA”) recently released its decision in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 (“United Nurses”), clarifying the test for family status discrimination in Alberta.

Background

Section 7 of the Alberta Human Rights Act prohibits discrimination against any person with regard to employment because of family status. The Supreme Court of Canada laid out the test for establishing discrimination in Moore v British Columbia (Education), 2012 SCC 61 (“Moore”).

To establish a case of prima facie discrimination, the claimant must establish that:

  • they have a characteristic protected from discrimination;
  • they experienced an adverse impact with respect to the service; and
  • 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.[1]

In Canada (Attorney General) v Johnstone, 2014 FCA 110 (“Johnstone”), the Federal Court of Appeal added a fourth element to the test for family status discrimination specifically: “that he or she has made reasonable efforts to meet childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible.”[2]

The Johnstone test is followed in certain Canadian jurisdictions but not in others. In Alberta, there was conflicting jurisprudence, which resulted in uncertainty.

United Nurses

In United Nurses, the Grievor was working full time with Alberta Health Services when she was informed that she would be placed on a new shift rotation that conflicted with her childcare obligations. She made two requests to stay on the current shift – both of which were denied. The union, the United Nurses of Alberta (the “UNA”), filed a grievance on her behalf and in the meantime, the Grievor was dropped from full time to casual status in order to meet her childcare obligations.

The matter proceeded to arbitration where the Board applied the Johnstone test and found that, while the Grievor had considered some childcare options, she did not exhaust all options and therefore, failed to establish reasonable self-accommodation.[3] The UNA applied for judicial review of the Board Decision where the Alberta Court of Queen’s Bench (“ABQB”) held that the Board had applied the incorrect test and directed the matter be sent back for a rehearing. AHS appealed the ABQB decision to the ABCA.

The ABCA dismissed the appeal, holding that applying the Johnstone test was not only unreasonable, but also incorrect because it conflates discrimination, which is determined at the first stage, with the duty to accommodate, which is determined only at the second stage. The ABCA further found that there was no justification “for changing the test when the complaint is family status discrimination” and that the Moore test will govern.

Takeaways for Employers

With over 65% of eligible Albertans fully vaccinated and a school re-entry plan in place, many employers are planning when, and how to return to the workplace. Growing concerns about a fourth wave of COVID-19 present foreseeable childcare challenges to employers and parents who may be forced to cope with sudden daycare and school closures. Employers should be prepared to manage family status accommodation requests and be cognizant of the Moore test before denying such a request – refraining from requiring employees to exhaust all self-accommodation steps before considering potential accommodations.

To the extent that Johnstone may apply elsewhere, provincially regulated employees in Alberta will not need to prove reasonable efforts to self-accommodate. However, employees still have a duty to participate in the accommodation process and once a prima facie case of discrimination has been established, an employer can dispute that the employee appropriately participated in the accommodation process, including by failing to make reasonable efforts to find alternative childcare arrangements.

If you are an employer and need assistance managing family status accommodation requests, please reach out to any member of our Labour & Employment Group.

[1]Moore v British Columbia (Education), 2012 SCC 61 at para 33 [Moore].

[2]Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone].

[3]United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 [United Nurses].

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