Accommodation outside work hours

Does the duty to accommodate a disability include the worker’s commute?

Employers have a duty to accommodate disabled workers on the job. That much is clear. But what about outside of work hours? A recent decision by a Nova Scotia Human Rights Board of Inquiry looked at a case where a worker claimed her employer didn’t accommodate her disability when it transferred her to a location further from her home.

The employer argued the province’s Human Rights Act does not concern itself with work location, because it’s the employee’s responsibility to find her own way to work.

Sue Anne Snow was a teaching assistant (TA) with the Cape Breton Victoria Regional School Board in Sydney. She had a visual impairment known as keratoconus. She described it as like having Vaseline wiped on your eye.

Because of financial problems, the board had frozen the number of TAs for the 2001 school year and the hours were cut from six hours per day to five-and-a-half.

The understanding between the union and school board in relation to freezing the number of TAs and reducing the work hours involved recognition by the union that management could reassign some of the 250 TAs, including reassigning them between schools in order to serve students best.

Snow was one of the least senior TAs. She had the opportunity to pick what school she would work at. But by the time her turn came around, only two positions remained. She picked a position at a school in Sydney Mines, which is within commuting distance of Sydney but is on the north side of the harbour. Working at the school would have required Snow to take a 50-minute bus ride or take a taxi at a cost of $40 per day, roughly half of her daily gross salary.

Never told anyone about disability

One of the many twists in this case is the fact Snow didn’t initially tell her union nor her employer about her visual impairment.

When she applied to the school board in 1997, the application contained a checkbox to identify whether she had a valid driver’s licence, and she said she did not. That application form also contained a box, which she left blank, that invited her to “describe any physical or health limitations you would like to have considered.”

At the 2001 job picking event where she ended up choosing the Sydney Mines school, neither the union nor the board had any reason to think Snow was unable to accept a reassignment.

“On the contrary, the employer had every reason to think that the reassignment would be acceptable to Ms. Snow, notwithstanding that she might naturally prefer to work in a location which was closer to her home,” the board of inquiry said.

Snow was not happy about the transfer. On Nov. 26, she wrote a letter to the board indicating it was “extremely difficult” for her to get to the new school “due to transportation and scheduling hardship.” It did not indicate she had a visual impairment or any other disability precluding her from getting a driver’s licence.

Snow did not show up at work after the job picking event. She called in sick. On Dec. 11, the board sent her a registered letter requesting a medical certificate to document her reason for continued absence from work.

Snow gave the board a letter from her doctor, indicating she was being treated for a “medical illness” which made her “unable to work at present.” The doctor said the illness had been aggravated by the loss of her job in Sydney. It went on to say Snow was unable to drive and “although she has been offered employment elsewhere, she is unable to get to the place of employment. This has placed undue stress on her.”

The note suggested that if the board could find a job within the Sydney area, it would be a “great relief to her and return to employment would likely be a possibility.” The note did not say she was “medically” unable to drive. The board of inquiry called the note “characteristic of a doctor’s stress leave letter to an employer.”

On Jan. 31, 2002, the employer sent Snow a registered letter. It made reference to her doctor’s comment that she was unable to drive.

“While this is most unfortunate, if, in fact, the reason you are not attending to your position of employment is because you cannot drive, that is not something that falls within the responsibility of your employer,” the letter said.

The board of inquiry said the letter is consistent with the school board being unaware, at least as of Jan. 31, of any disability.

“A note such as (the one from Snow’s doctor) would be an irritant to most employers, both because of its vagueness and because of the undertone that the employer will be faced with indefinite stress leave if it does not accede to the employee’s demands regarding a convenient work location,” the board of inquiry said.

Snow feared for her job

Snow acknowledged she had initially been reluctant to make reference to her visual impairment. She was “fearful for her job,” something the board of inquiry said was perfectly natural.

“She was, after all, working in a school system, assisting students (some of whom needed academic assistance). Her sight within the classroom was significantly impaired and even her reading ability was somewhat compromised,” the board of inquiry said.

But eventually Snow came around to the view that the board would likely accommodate her disability. She made a conscious decision to reveal her disability at a meeting on March 1.

At that meeting, Snow provided a medical note and document from the Canadian National Institute for the Blind (CNIB). She explained her condition and her ineligibility for a driver’s licence. She asked that her disability be accommodated by allowing her to work in Sydney.

The school board said it would look further into the matter. The union and Snow, believing this meant the employer would look at options to accommodate her, assented. But, unfortunately, there was a misunderstanding. The employer actually meant it would obtain medical information directly from Snow’s doctor and the CNIB about her condition.

What the employer found out

The employer wanted to know the nature and extent of her visual impairment, whether it really did prevent her from getting a licence and whether there were reasonable alternative means for her to get to school without having to have a licence.

In addition to getting medical information, the school board also spoke with the CNIB. The person the school board talked to at the CNIB was unsympathetic to Snow. Apparently, the CNIB staff person told the employer she thought Snow was using the vision impairment as an excuse to avoid an unwanted relocation of her job.

It also looked at the transit schedule. The bus left Sydney at 8 a.m. and arrived in Sydney Mines at 8:50 a.m. The walk from the bus stop to the school was less than five minutes. The return bus departed at 3:05 and arrived in Sydney at 4 p.m.

Since the school day started at 8:30 a.m., it appeared the bus was not a viable option. But the principal at the school was open to accommodating variations in work schedules.

On March 27, the school board met with Snow. It told her it was not the school board’s responsibility to concern itself with her ability to get to work. The employer said it was not able to determine she was medically unfit to drive from the information it got, and it suggested public transit (with an accommodation in her start time) as a reasonable alternative to driving. The employer also offered to provide a list of teachers and TAs who work in Sydney Mines but live in Sydney so she could arrange for a ride.

But the union was not interested in accommodations involving changes to the hours of work or car pooling. The union instead focused on the employer’s decision to contact her doctor without getting express consent.

On April 12, the two sides met again. The union had a signed grievance that it was ready to present, regarding the employer’s contact of her doctor without consent. The union told the employer it had looked into the bus schedule and babysitting options available to Snow, and that she could not work in Sydney Mines.

On April 19, the employer acquiesced. The decision was not made out of a sense of legal obligation, but rather “weariness.” The board of inquiry said the school board “probably hoped that making this concession might end the escalation of hostilities that had resulted from the contact with (Snow’s doctor.)”

The board of inquiry’s decision

The board of inquiry had three issues to consider:

•Given that it is normally an employee’s responsibility to get themselves to work, is a change in location a matter which is beyond the purview of a Human Rights Act employment discrimination complaint?

•Did the school board unlawfully discriminate against Snow, and fail to accommodate her to the point of undue hardship, by not granting her request for a work location within the immediate Sydney area until April 23, 2002?

•If so, what is the appropriate remedy?

The school board took the position that employers do not become vulnerable to Human Rights Act complaints for failing to concern themselves with issues about an employee getting herself to the job. But the board of inquiry said it wasn’t that simple.

“Just as hours of work is a term of employment that can have discriminatory impacts because of circumstances occurring entirely outside of the workplace, so too can the requirement to attend at a particular work location in some circumstances be legally recognized as discriminatory,” the board of inquiry said.

If Snow could have taken public transportation to and from work and arrived at the regular start time for TAs, the board of inquiry would have found the change in work location was not discriminatory.

“I say this recognizing that many non-disabled people would have the option of driving their vehicle to the workplace, and that taking public transportation for 50 minutes in either direction to or from work is an unattractive option for many people, particularly for a job which only provides a 5.5 hour workday at relatively low rates of pay,” the board of inquiry said. “However, commuting to and from work is a life experience in which there is a wide variety of burdens, hardships and choices amongst the population at large.”

A 50-minute bus ride was not out of the range of ordinary commuting issues faced by the public at large, the board of inquiry said. Therefore, the school board would not have been held responsible for any accommodation except for one fact.

“The bus to North Sydney is obviously not like a street car on Queen Street in Toronto, with one going by every couple of minutes. It has a single run to Sydney Mines each morning, such that the bus arrives at 8:55, after the normal start time for TAs,” the board of inquiry said.

Therefore, the school board would have to grant an exemption to its ordinary start time to accommodate Snow. (The board of inquiry said options like employer-sponsored car pooling arrangements could also be considered, but simply handing a list of names of other commuters to Snow and asking her to try to arrange a ride was not satisfactory.) The school board was willing to make an exemption for Snow’s start time, but she refused. The board of inquiry said this was reasonable accommodation she should have accepted.

“(She) does not have the right to refuse a reasonable accommodation, even if there is an alternative reasonable accommodation which would not cause undue hardship to the employer, which the employee would prefer,” the board of inquiry said.

Snow said family responsibilities made it difficult to leave the house to catch the 8 a.m. bus. But there was nothing to suggest this was anything different than most workers face in trying to balance work and life.

“She felt she could force the school board to change her job location back to Sydney from Sydney Mines,” the board of inquiry said.“She was rightly annoyed at the school board’s legal position that the employer had an unfettered right to change her job location. She was rightly annoyed at the school board’s investigation into her disability. But she was legally wrong in not accepting or even seriously entertaining the offer to vary her hours of work to conform with the bus schedule.”

Therefore, while Snow can’t be blamed for wanting to work near her home, she did not have a legal right to that outcome.

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