The use of assistive personal devices such as hearing aids, reading glasses and prosthetics could become more prevalent as the workforce ages.
Many employers provide subsidies for these through health benefit plans, but a recent decision highlights the fact such devices may fall under the purview of accommodation if they’re absolutely required for an employee to do his job.
In Thunder Bay Catholic District School Board v. Ontario English Catholic Teachers’ Association, the union filed a policy grievance alleging the school board failed to properly accommodate a high school teacher’s disability. The woman had a hearing disability and suffered from progressive hearing loss. But when she requested reimbursement for digital hearing aids she purchased in 2008 and 2009, her employer refused.
The board’s policy of refusing to contribute to the costs of these devices without considering the appropriateness of the devices was inconsistent with the collective agreement and the Ontario Human Rights Code, according to arbitrator Gordon Luborsky.
“The board’s interpretation of its obligations under the collective agreement, code and/or other legislation is too narrowly construed in that it mistakenly refuses to consider providing or contributing to the costs of personal bodily assistive devices and related expenses among the range of accommodative measures available in the course of employment, short of undue hardship.”
Effective oral communication with students was essential to the teacher fulfilling her basic role and the employer was too narrow in restricting accommodation at the boundary of the human body, said Luborsky.
“With changes in technology that may interface intimately with the individual’s body (particularly in matters of communications in the modem workplace), what might previously have been considered a ‘bright line’ between the world of the employer and that of the employee in the search for appropriate accommodation has become blurred, which is a trend that is likely to continue into the future,” he said.
The board was ordered to revise its policy to include consideration of personal bodily assistive devices and their related expenses in the search for appropriate accommodation. It also had to pay about $400 based on the presumption the teacher used one digital hearing aid while in the service of the board 17.5 per cent of the time and a possible $375 for the other hearing aid (used for a limited time). The digital hearing aids cost $2,820 and $2,147, though the teacher received $500 for each one from the province of Ontario.
The school board was not concerned about the money but about accommodation crossing the line, said Donna Gallant, a partner at Fasken Martineau in Toronto. It had made several accommodations for the teacher, such as purchasing a directional microphone and a telephone designed for the hearing impaired and soundproofing her office at an expense of $10,000.
“After you’ve invested $15,000 already to try to accommodate somebody and they have analog (hearing aids), it might start to sound like a want versus a need, particularly when (the board was) prepared to say, ‘We’re not going to penalize you in any way on a performance evaluation, we understand your problem, we think we’re doing our part.’”
Traditional thinking has been the employer is responsible for modifying the physical environment or work methods to accommodate an employee with a disability, while the employee is responsible for his own person and day-to-day living devices such as hearing aids and glasses, said Gallant.
“I don’t think employers should panic but the scope of the duty to accommodate just got a little wider.”
But the board made a mistake by precluding even considering providing or contributing to the cost of a device, said Wayne Benedict, barrister and solicitor at McGown Johnson in Calgary.
“They said, ‘No, we’re not even going to look at personal devices… only because it’s something that you wear and we’re afraid of the floodgates, so that’s off the table.’ That in itself was a breach,” he said. “The employer… seemed to draw an arbitrary bright line between physical changes to the workplace or schedules, whatnot — devices that might be supplied in the workplace, such as amplification devices, telephones — and a device that a person would wear. That is not a distinction that’s found anywhere in the law.”
What the board should have decided is nothing’s off the table when it comes to the procedural aspect, he said. That means sitting down with the union and employee and attempting to brainstorm different accommodations.
“Employers would be smart to review their policies and if they have any that are similar to the one in Thunder Bay, they should remove those arbitrary barriers to procedural aspects of the duty to accommodate because it’s got to be flexible, innovative,” said Benedict. “By putting arbitrary fetters on that process, they’re putting themselves in a position where they could not justify a discriminatory action or standard right off the get-go.”
Floodgate issue addressed
As for the “floodgate” concern, not every employee who needs eyeglasses, medicines, prosthetic appliances or even hearing aids to get through the workday has the right to require its employer pay for these in all circumstances, said the arbitrator. That possibility was properly addressed by the Ontario Human Rights Code and the three-step process around accommodation, “recognizing the employer’s ability to show that the accommodative measure(s) would cause it undue hardship,” he said.
However, these issues may become precedent-setting, said Bryce Chandler, an associate at Shibley Righton in Windsor, Ont., as an expectation is created by the requirement to accommodate.
“As soon as one person... obtains the digital hearing aid at the company’s expense, then there’s an expectation there as to what types of moneys are going to be expended by the company on behalf of other individuals.”
In this case, the board had to pay a portion of the total cost and many benefit plans would cover at least 17.5 per cent of the costs of eyeglasses, he said. But that may not be the case for some medications and arguably is not the case for employers employing part-time workers who may not be eligible.
If an employee says his eyesight is bad and he needs glasses, the employer should consider subsidizing eyeglasses for the worker even though there is no benefit plan, said Chandler. If there are no other reasonable accommodation measures, the employer could be required to subsidize the proportional cost of the eyeglasses. But the employer could be required to pay the proportional cost if there are no other alternatives and there is medical evidence demonstrating the need.
Employers should carefully consider the reasonableness of an accommodation request that involves a contribution toward the cost of a personal assistive device, said Gallant. They should also ensure the amount of the contribution reflects an appropriate balance between work and personal use, and establishes reasonable expectations for others in the workplace.
While employers may see more attempts to claim these expenses, such requests are not going to pass muster when it comes to discrimination and accommodation analysis, said Benedict. A person not only has to have a disability but have received adverse treatment because of that and there has to be a causal connection between the two, he said.
If an employer is under the misimpression duty to accommodate would never require the provision of these personal assistive devices, “they may want to shift the financial risk off themselves into an insurance policy by either upgrading their extended health to cover those devices or what have you,” said Benedict.
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