Medical Mothers At Work

Siemens Milltronics Process Instruments Inc v Employees Association of Milltronics is an important Ontario case brought by mother Cindy Moore.

Her were legal claims were heard in arbitration.

Siemens Milltronics Process Instruments Inc v Employees Association of Milltronics, 2012 CanLII 67542 (ON LA) may be accessed here: https://www.canlii.org/en/on/onla/doc/2012/2012canlii67542/2012canlii67542.html?resultIndex=1

Medical Moms At Work

Moore alleged that her employer (a company) had breached the Collective Agreement and the Human Rights Code when it refused to pay her for days missed while caring for her severely disabled daughter. Moore’s human rights complaint was for discrimination on the basis of family status. See Human Rights Code, RSO 1990, c H19, s5(1).

The company’s position was that because Moore had failed to work the regular, scheduled days preceding holidays, and because the reason for her absences (emergency child disability care) was unsatisfactory, she was not entitled to be paid for those days.

By way of explanation, Moore submitted that her husband had left that year and she was a sole-support parent. She had two daughters living with her in fact, a 17 year-old who was in high school and another daughter whose age is not provided, but who is noted to have severe medical disabilities. This daughter attended a school full-time in what is described as a “special program”.

In terms of care provisioning that she had arranged and managed, Cindy Moore informed the court that she’d hired a personal support worker (PSW) provided by her local Community Care Access Centre (CCAC) who attended every weekday morning Monday through Friday for 1.5 hours to assist her daughter in getting to school.

After school, a different PSW was employed privately by Moore, and paid for with external funding she received for her daughter from the province.

When this PSW was not available to work (the evidence showed she also worked at a nursing home and therefore had to juggle schedules), then Moore’s own mother provided the care. Moore’s 17-year-old daughter also provided care.

In short, five women provided care to the disabled girl. The father did not provide care, nor had he been involved with his disabled daughter since he left the family.

Turning to the workplace, Moore was a long-time employee who had worked for the company for twenty years. She missed work because, according to her evidence, the school had called her December 22, 2011 to advise her that her disabled daughter was vomiting mucus and blood.

Moore submitted that these signs signaled that her daughter needed heightened care to avoid hospitalization. On December 22, Moore asked both her mother and the PSW to care for her daughter, but neither one was available. She advised her employer of this situation in advance of her missed shifts, making calls to her workplace, where HR was informed. Moore cared for her sick disabled daughter including on December 24th. The business was closed for holidays from December 24 to January 2.

In response to her missed days, the company did not pay Moore for December 25th or 26th, 2011 nor January 1st, 2012 as a result of her having missed days of work during the vacation period. In the decision, it is noted that Moore had been absent 19% of the year rather than the 14% of the time allowed in the collective agreement.

She deserves recognition for the fact that she was able to manage complex care and full time work. That was not to be forthcoming in this venue, however.

The decision states that the company was understaffed during the holiday season due to employees taking pre-approved vacation leave. This was found by the adjudicator to be an “important consideration with respect to the company exercising its discretion to accept additional reasons for employees to be absent on qualifying days.”

Arbitrator Stout, having jurisdiction over the human rights claim as well, reviewed what he referred to as new and evolving case law on family status and concluded: “accepting the proposition that any employer action, which has a negative impact on a family or parental obligation, is prima facie discriminatory is untenable.”

He commented that attendance at work interferes with family responsibilities, but that “requiring work in exchange for compensation is a reasonable and bona fide requirement.” This statement ignored that Moore was working at home providing complex care to her ill disabled daughter without compensation, a feature that on the facts of this case, placed her livelihood in jeopardy.

Mr. Stout’s next opinion was that it is not the mother who was ill, but rather her disabled daughter, stating the mother was medically able to attend work, but did not do so because she did not have child care. He concluded that the reason for the mother’s absence was not linked to her inability to work, but due to her inability to obtain care for her disabled child. He stated the mother had “some control” over finding care for her disabled daughter, but added, “Unfortunately, no one was available…” More importantly, he stated, she had already exhausted her leave entitlements, including those of emergency leave

The result was that this arbitrator found there was no discrimination in response to her allegations that the company breached the collective agreement and the allegation that the company breached the Ontario Human Rights Code family status provision.

The Moore case presents a number of problems. These may be readily identified by those of us, who like Cindy Moore, have undertaken the impossible One is that respectfully, the arbitrator contradicts himself in his reasoning. The fact that Moore was vulnerable to having no childcare meant that she had no control over arranging her affairs to obtain assistance in providing for her disabled daughter, at least on these occasions.

He further stated that he saw Cindy Moore was in a difficult situation as a single mother with a severely disabled child, and was sympathetic “with her predicament” (author emphasis).

Then there was the normative opinion rendered by the Arbitrator. He stated that all children become foreseeably sick and that the difficult choice faced by Moore was no different than those that other parents face where there is a conflict between work and family obligations, adding

“That is why parents must plan for such situations and why emergency leave provisions exist.”

The arbitrator was focused on her leave entitlements, and could not envisage her as entitled beyond them. The comment made that the attendance policy of the company was “important” around the holidays with respect to the company exercising its discretion is an interesting one in light of the fact that the company chose to do so in the direction of punishing the mother of a child with a severe disability, by withholding pay.

The issue of what is the best approach for adjudicators to take in family status cases was addressed in an Ontario Bar Association employment law publication subsequent to the Siemen’s Milltronics decision. The author of it states that the test seen to be most suitable is whether there has been serious interference with a substantial parent/child obligation such that that protection under the provisions is engaged. There must be a “substantial obligation” with respect to the care requirement.

If this point interests you see also Adrian Ishak “Family Status Accommodation in Ontario – Taking the Middle Road” (Toronto: Labour and Employment Law Section, Ontario Bar Association, 2013) online: <http://www.oba.org/en/pdf/sec_news_lab_mar13_fam_ish.pdf> at 3.

 An important issue that remains unaddressed (to this day in fact) whether health care for a severely disabled child will fall easily under what the author calls an amalgamated approach. In such an approach, protections under family status are engaged where a ‘substantial obligation’ must be in the nature of a care requirement, and not the employee’s preference on how such care should be provided.

Arbitrator Stout in the Siemens Milltronics, case did not appreciate this distinction, and he is not alone.

Moreover, where a non-disabled child vomiting mucus and blood at school is framed in the workplace as an excusable parenting emergency, for Moore and others like her, it is a common concern.

And there’s The Rub.

In Siemens Milltronics, the arbitrator sympathized with the employer, “read in” Cindy Moore’s circumstances as comprising undue hardship to the employer and therefore beyond the extent to which accommodations to a parent legally must be made.

The implication to be drawn is that Cindy Moore failed to manage her circumstances well enough, and the message that this case sends is that employers can punish mothers with severely disabled children who miss work because of a risk of a child’s hospitalization and/or lack of disability care.

In fact, Moore’s daughter has cerebral palsy and hypomyelination, the latter described in the case as akin to Multiple Sclerosis. This care situation is far from what other parents typically plan for in relation to their work.

These kinds of care and the law issues are not only an issue in Canada. Consider the US case, Washington v Illinois Department of Revenue, 420 F 3d 658 662 (7th Cir 2005).

The facts of that case are that between 1984-2000 Chrissie Washington worked from 7 a.m.-3 p.m., hours that permitted her care for her child who had Down Syndrome.

Then, she was promoted, and some of her duties were changed. She complained however believing this change was racially motivated.

Then her work hours were changed to 9-5 in another position and she was told to reapply for flexible scheduling. She used her sick and vacation time from 3-5 to provide care to her child, but that option eventually ran out.

She brought forward legal complaints She contends in this suit under Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, that the agency moved her to a 9-to-5 schedule in retaliation for her earlier charge of discrimination.

The parties consented to a magistrate hearing their dispute. The magistrate ruled that Washington could not show adverse employment action, because although her work hours had been changed, the duties and salary were the same. However, on appeal to the circuit court, it was held that employers may not exploit workers’ special vulnerability. The court held that “At this stage of the litigation a court must indulge all reasonable inferences in Washington’s favor”, the district court’s judgement below was reversed, and the case was remanded for trial, i.e., it was returned to the magistrate.

Meanwhile the caregiving mothers in these cases simply wanted to be able to support themselves.

Chrissie Washington’s case was discussed in the book Reshaping the Work-Family Debate: Why Men and Class Matter. By Joan C. Williams. Harvard University Press, 2010.