Human Rights Tribunal Rules Burden on Mother to Consider Non-Corporate, Home-Based Daycare as Solution to Work Schedule/Childcare Conflict

child plays with wooden blocks with letters on the floor in the room a little girl is building a tower at home or in the kindergarten.

In reasons issued on June 5, 2020, the BC Human Rights Tribunal dismissed the complaint of a Pacific Blue Cross (PBC) employee who alleged that her employer failed to accommodate her in relation to her family status.

The complainant was a team leader in PBC’s customer service department. She had just returned from maternity leave, which was already cut short due to a childcare issue.

Childcare can be difficult to find in BC. As parents of young children know, you often need to put your child on a childcare wait list, especially if you are looking to get them into childcare as an infant. It can take over a year to get off of a wait list. As a result, some parents in BC put their children on childcare wait lists before they are even born. Once your child’s turn on the wait list comes up, you need to choose to either put them in care or lose your spot.

Thus, when a spot became available for the complainant’s child at 10 months old, she decided to take the opportunity to get him into the facility and go back to work for PBC. Her office was in Burnaby and her home and childcare facility were in Langley. With traffic, the commute can be between 45 and 90 minutes.

The complainant’s work schedule prior to her maternity leave ended at 4:30pm and she understood it would continue to end at that time when she returned. Her son’s childcare required pick up by 6:00pm.

When she returned to work, she was told that her schedule would change to require her to work until 5:00pm for one week every four weeks. The complainant told PBC that she could not do this because it would not allow her time to reliably pick up her child by 6:00p.m. She expected PBC to accommodate her childcare schedule. They did not. As a result, she filed a human rights complaint asserting that she was discriminated against on the basis of her family status.

Tribunal Member Norman Trerise noted in his reasons that the law puts the onus on a the complainant to prove that the employer changed a term or condition of the employment and that the change seriously interfered with a substantial parental duty or obligation. Mr. Trerise held that the complainant did show there was a change to a term of the complainant’s employment. He held, however, that the change did not seriously interfere with a substantial parenting duty or obligation.

According to the member, this was because the complainant did not do enough to explore alternate childcare options. He held as follows:

It is clear that Ms. Ziegler made insufficient efforts to ascertain whether she could arrange alternate daycare which would allow her to work the altered shifts which PBC imposed on the TLs. She eliminated, without any visits to ascertain their suitability for her child’s needs, all home‐based private daycare facilities between Burnaby and Langley from her search. She did this out of a pre‐conceived idea that
“corporate” daycares were the only daycares which could provide suitable care to meet her standards. No evidence was placed before me to support such a position other than Ms. Ziegler’s bald assertion to that effect.

Further, he held:

[66] Instead of searching for a suitable daycare her energies went into fighting a battle to get PBC to provide her with an exemption from their revised work schedules for TLs and alternatively a search for alternate employment.

[68] Ms. Ziegler has made it clear in her evidence that she felt it was unfair for PBC to put her in the position where she must alter the childcare arrangement she had in place. In particular, she was not prepared to consider a non‐corporate, home‐based daycare as a possible solution. Many parents might react similarly, particularly given the age of her child. The test for discrimination on the basis of family status under the Code, however, makes it clear that more is required.

This decision provides a lesson for parents alleging discrimination in failing to accommodate their childcare schedules in the future. As per this decision, parents need to show that they have made an effort to find a solution to the problem. This could mean exploring alternative types of childcare facilities, an alternate schedule with the daycare provider you have, or an alternate schedule with your spouse and their employment. Even if your efforts are fruitless because you still could not solve the problem, the point is to show that you tried.

Kayla Bergsson Talks on Danish Podcast About Human Rights in Times of Crisis

 

COVID-19 Amounts to Disability & Employers Must Accommodate Employees Amidst the Crisis, BC Human Rights Commissioner States

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On March 23, 2020, BC’s Human Rights Commissioner Kasari Govender released a statement on COVID-19, saying that in her view, COVID-19 amounts to a disability. While she recognized that in the rapidly changing circumstances, there has not been time for courts of the BC Human Rights Tribunal to weigh in on the matter, she was prepared to provide her opinion. She gave the following reasoning:

The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the Code except where the duty bearer can justify such treatment (for example, to prohibit or diminish the transmission of the virus).

Commissioner Govender also asserted that in addition to the BC Human Rights Code protecting people with the virus from being discriminated against, it also protects people from being discriminated against based on the ethnicity, place of origin, race, colour, or ancestry. This means employers, landlords, and service providers “cannot discriminate against someone on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as Italy or China.”

Additionally, she stated, discrimination based on family status is protected. This means that with the closure of daycares and schools, duty bearers must accommodate parents so that they can ensure their children are cared for.

According to Commissioner Govender, employers have a number of duties in the midst of COVID-19. They cannot make discipline or firing decisions based on someone having (or exhibiting symptoms of) COVID-19 (although they can lay employees off if there is not enough work for the as a result of the impacts of COVID-19). They must accommodate employees that may have COVID-19, or are particularly vulerable to COVID-19 (for example if they are elderly or immunocompromised) by providing flexible arrangements, such as working from home.

Commissioner Govender also presented a survey for citizens to complete in order to assist her with carrying out her duties and advocate for people facing discrimination during the pandemic. The survey asks about how your human rights are being impacted during COVID-19 and you are encouraged to fill it out.

Legislation Allows BC Employees Unpaid COVID-19-Related Leave

On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

  1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
  2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
  3. the employer, due to a concern about exposing others, has directed the employee not to work;
  4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
  5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.

Covid-19 Raises Employment and Human Rights Concerns Across BC, Government Announces Novel Protections

From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.

Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.

On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.

Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.

Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.

Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.

Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.

Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.

From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.

The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”

Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.

One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.

Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.

The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.

Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.

Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.

MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.

Human Rights Tribunal Agrees to Hear Complaint from Stay at Home Mom that BC Speculation Tax Sets Women Back Many Decades

In a news article published by CBC, Victoria BC Complainant Melany Startek alleges that BC’s speculation and vacancy tax discriminates against stay at home parents (who are most often women) because her contributions of raising a family, volunteering, and community involvement are not considered in the assessment regarding implementation of the tax.

Since those aspects of her life are not considered, and her husband works in the US, she is considered a “satellite” of her husband and an “untaxed worldwide earner” in a “vacant” home. To the contrary, Ms. Startek is a BC resident. She lives in her home full time raising her children and is not a “speculator.” If the work that she does at home were valued, she would not be considered someone who makes less than 50% of the household income and this wouldn’t be the case. Instead, she’s been hit with a $13,250 tax bill for 2019.

The tax was designed to target foreign speculators who leave properties empty while they live and pay taxes abroad.

Startek’s lawyer told CBC that the tax has made certain family the scapegoats of BC and that if the Human Rights complaint is successful, it could open up the government to a realm of human rights complaints.

Landlord’s Harassment Forces New Mother to Vacate Suite 12-days after C-Section

In a decision issued on February 19, 2020, Valdez v Bahcheli, the BC Human Rights Tribunal held that a landlord’s conduct amounted to discrimination on the basis of sex and family status, in violation of section 10 of the BC Human Rights Code.

A few days after Germaine Valdez gave birth, her landlord Meltem Bahcheli texted her saying that she would need to find a new place to live. The day Valdez returned from the hospital, Bahcheli came to the suite and began yelling at her. Bahcheli told Valdez that if her family did not cooperate and agree to vacating the suite, she would be evicted and refused a reference. Further, Bahcheli would not allow Valdez to stay present in the suite while it was shown to prospective tenants. This meant Valdez would have to walk around outside in the cold with her baby for two hours while recovering from her recent c-section. Her baby was 11 days old.

The Tribunal ordered that Bahcheli pay Valdez $1,923.56 for moving expenses and $9,000 as compensation for injury to her dignity, feelings, and self-respect.

In delivering reasons, the Tribunal held as follows:

[30] Ms. Bahcheli’s behaviour was having a serious impact on Mrs. Valdez. She was frequently crying. She was having to physically exert herself more than she should have been, immediately following a c‐section. As a result, she experienced some unusual bleeding that required medical attention. Mr. Valdez testified emotionally about this time. He explained that all he wanted to do was make sure his wife was safe, but they had very limited resources. He was working and going to school and so could not be at the apartment all day to intervene with Ms. Bahcheli. They could not afford to hire movers and he wanted to make sure Mrs. Valdez was doing as little physical activity as possible.

[40] There were no issues in the Valdezes’ tenancy until Mrs. Valdez told Ms. Bahcheli that she had given birth. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 8 CHRR D/4028 (Ont. Bd. Inq). It includes having a baby: Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”: Abernathy v. Stevenson, 2017 BCHRT 239 at para. 15.

[43] The birth triggered Ms. Bahcheli to begin what would become a torrent of accusations that the Valdezes had lied to her and misrepresented themselves. Over the next few weeks, she refused to meet and deal with the Valdezes in a professional way, threatened to start legal action against them and charge them sums of money for wasting her time, and insisted on frequent, uninterrupted access to their apartment at her own convenience. I am satisfied that Ms. Bahcheli’s conduct over this period constituted harassment at a point when Mrs. Valdez was particularly vulnerable. The harassment was directly connected to the birth of Mrs. Valdez’s child.