In May 2016, the federal government published a discussion paper, Flexible Work Arrangements, A discussion Paper. Many working Canadians face the challenge of striking that right balance between work and personal commitments. As a mother of two boys, I can certainly relate to the challenge of finding balance. It seems as though I am constantly juggling multiple priorities.
Employees today seem to have different expectations and are seeking flexibility. This is particularly true for millennials – those born between 1980-2000.
According to the Paper, Millennials are the fastest growing segment of Canada’s workforce and have become the largest generation in the workforce. Not surprisingly, employers find that they must adapt and develop employment practices to better accommodate the needs of this generation.
Flexible work arrangements can be divided four categories: (1) part-time/reduced hours, (2) job sharing, (3) leaves, and (4) gradual retirement.
So, when can employees request flexible work arrangements?
How does it work and what do they need to show? While flexible work arrangements may be required for a variety of needs including elder care, or caring for a sick spouse, in this blog post I am focusing on childcare obligations.
While the case law is still in flux, guiding principles have now been established under human rights legislation.
Essentially, an employee must show that he or she has a “substantive childcare obligation that cannot be reconciled with an employer’s existing rule or policy.” Legal jargon aside, an example of a substantive obligation would be a young child who could not be left at home unsupervised. A non-substantive obligation would be attending a hockey practice or dance recital. The key seems to be to distinguish between legal obligations and “personal ones”. Basically, the courts want to limit accommodation of a request for flex-time to essential childcare responsibilities and not so called extras like piano, hockey or gymnastics. Many are not happy with this result and view it as unrealistic and antiquated.
In my view, the legal test is too narrow and many parents will continue to be frustrated. The law is not keeping up with the demands of the modern family. Another problem which arises with the current approach is that employees will have to share personal information with their employer in order to make their requests. Examples of such information might be medical records, notes from a coach or a counsellor. The issue of employee privacy will have to be managed.
While fathers today have a much greater role than in times past, the burden of managing childcare and household activities still falls disproportionately on mothers. In addition to having to work, and manage the house, women are often the ones asking for flex-time.
This “test” is only likely to create more work for mothers and will further burden families which is the opposite of what the legislation is supposed to achieve. It will certainly be very interesting to see how this legal framework is tested as the millennials start to become parents of school aged children. That along with technological advancements we witness every day in the workplace is sure to test the soundness of the current legal approach.