Should flex-time join personal leave under legal protection?
By Jeffrey R. Smith
Finding balance in life sometimes seems like an impossible dream — especially if your work is crazy busy and makes it difficult. However, work-life balance is becoming more prominent as many younger workers are putting a high priority on it and older workers may need it due to the development of health issues.
Flex-time is an increasingly popular way of helping employees achieve this balance and can be a good way of recruiting top talent who may make it a key factor in deciding on who to work for.
Something else related to work-life balance that has come into play in recent years is family status as a protected ground under human rights legislation. This means employers are required by law to assist employees in balancing work and certain personal obligations that relate to certain family elements such as essential parental duties. In such circumstances, flex-time may not just a good recruiting or retention tool, but actually part of an employer’s required duty to accommodate.
The federal government has just begun a process that may change the Canada Labour Code and enshrine flexible work hours as a right for federally regulated employees. The government is developing an online survey and will be holding town hall meetings across Canada over the next little while, seeking consultation on how to approach the changes.
The changes could include job protection for workers seeking flex-time and measures to encourage employers to hire people who may only be able to work different hours due to parental obligations or cultural practices. During the 2015 election campaign, the Liberals promised to make it easier for federally regulated employees to request changes in their work hours or to work from home.
Such steps would not only likely increase the incidence of employees working flex hours, but also the expectation they will be implemented if requested. While some people asking for flex-time might be doing it simply for convenience, many others are doing it because of family obligations. Since family status is a protected ground from discrimination, should flex-time for employees with family obligations be considered a human right?
When family status accommodation is requested, it usually depends on the reason for the request as to whether it should be granted or not. Courts have noted that simple desires such as attending children’s sporting events or other minor things do not require accommodation — though employers that do their best to grant such requests would probably be seen in a positive light by employees and candidates, which could help productivity and recruitment. More pressing obligations, such as childcare and special needs children, have been found to require accommodation. Flex-time is a common solution to these requests.
If flex-time becomes a protected reality under federal labour legislation, it’s possible it could open the door to the same in employment standards legislation in some, if not all, provincial and territorial jurisdictions. Obviously, employers may balk at such measures, as has happened in cases where flex-time could have helped fulfill a duty to accommodate that the employer failed to meet.
There is also the fear — which was brought up in the family status accommodation debate — that such measures will open up the door to ridiculous and unnecessary requests.
Many jurisdictions have increased the amount of job-protected leave to which employees are entitled. Is flex-time on the horizon for similar treatment?
