School custodian with back problems denied summer job requiring physical labour

Arbitration board says duty to accommodate doesn't require creating an unnecessary position

Accommodating a school custodian who was refused a summer job because her ongoing back problems restricted her ability to do heavy lifting, mopping and sweeping would have caused undue hardship for her employer, the Ontario Arbitration Board has ruled. The custodian, who is a regular part-time worker for the Ottawa-Carleton District School Board, suffered a back injury at work in 2003. She was off work on short-term disability leave for several months and returned to work on modified duties. Her lower back pain continued to bother her and she subsequently took more time off in 2005, when she applied for WSIB benefits.

She went back to work in May 2005 and a modified work agreement was reached. The agreement stated she could no longer lift more than 10 pounds, mop or sweep, although she was able to do lighter duties such as wiping surfaces and dusting. Since the custodial duties at Clifford Bowey school could not be modified to accommodate her, she was assigned to another school, where light duties were taken from two other custodians and given to her.

The school board’s custodians, who are employed from September to June each year, can bid on summer jobs which involve giving schools a thorough cleaning, including moving desks, clearing furniture, scrubbing floors and shampooing carpets with a 300-pound machine.

The custodian had previously bid for and received summer work at Clifford Bowey school. When she applied again in 2005 to work there, she was told she could not do the assignment since the job had to be done ­without restrictions on physical labour. The school board concluded she did not have the capability to do the job, claiming the work over the summer was very labour intensive. The custodian filed a grievance, claiming the school board did not accommodate her and discriminated against her disability.

The issue, said the arbitration board, was “whether to have engaged the (employee) for the summer work would have been an undue hardship for the employer.” Although the union said the employer failed to do this analysis, the board disagreed, saying “the only reasonable conclusion to draw was that the (employee) could not do the work required at Clifford Bowey.”

The arbitration board also found accommodating the custodian with a summer cleaning position at another school was “not a viable alternative” and would bring undue hardship. It added “the duty to accommodate does not require an employer to create a position it does not need.” See Ottawa-Carleton District School Board v. O.S.S.T.F., District 25, 2007 CarswellOnt 1898 (Ont. Arb. Bd.).

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