Accommodation of Toronto teacher doesn't have to include transfer

Worsening of symptoms coincided with workplace conflict

Accommodation of Toronto teacher doesn't have to include transfer

An Ontario school board did not have to transfer a teacher to a school closer to her home to accommodate her medical conditions.

The worker was a teacher with the Toronto District School Board (TDSB) since 2002. She had several chronic medical conditions including fibromyalgia (FM) and chronic fatigue syndrome (CFS) with symptoms such as pain and stiffness in her muscles.

The TDSB accommodated the worker by providing her with an elevator key so she wouldn’t have to use the stairs and scheduling her to work in one classroom with proximity to the washroom and office.

In 2003, the worker taught at a school that was about 16 kilometres from her home. She went on maternity leave in 2006 and, during her leave, she and her family moved to a new home that was 29 kilometres from the school. This meant that when she returned to work, her daily commute increased from about 20 minutes each way to between 75 and 90 minutes in the morning and about 45 minutes in the afternoon.

Public transit also wasn’t an option as it would take at least two hours and if she stood for too long, she would faint.

The worker took a leave of absence for the 2011-12 school year. When she returned, her school had a new principal and her classrooms were located on the second and third floors of the school.

The worker had a dispute with another teacher, and she felt bullied and harassed. The conflict caused her stress, aggravating her FM and CFS symptoms.

The worker requested an elevator key as she had before, but she was told she would need a doctor’s note. She visited her doctor and told him about pain she was experiencing during the drive to and from school. She asked for a note that was specific to “how many kilometres she could drive,” estimating about 15.

The worker provided a note on Sept. 10, 2012, requesting access to an elevator, all of her classes in the same classroom, and close proximity to the washroom and office. The note also stated that “she needs to work at a location that is within 15 kilometres of her current residence” to prevent “a relapse of a debilitating condition.”

The principal said that many of the in-school accommodations could be met.

However, on Oct. 19, a mediation with the other teacher didn’t go well and the worker didn’t return to work afterwards.

On Oct. 29, the worker saw her doctor with worsening symptoms and the doctor completed a functional abilities form that reiterated the in-school accommodation requirements as well as the requirement she work within 15 kilometres from her home. The worker remained off work because she felt “unsafe because the situation [with the other teacher] was not resolved.”

The TDSB declined to put the teacher on a list for a facilitated transfer — mid-year transfers were “extraordinary and genuinely disruptive to the learning process” — and the worker filed a grievance claiming the TDSB refused to accommodate her.

The arbitrator found that the worker had a disability. However, the evidence indicated that she didn’t suffer an adverse impact from her commute that was related to her disability, as she was able to successfully make the drive for four years before her 2011 leave of absence.

The worsening of her symptoms coincided with the conflict with the other teacher in September and October 2012 and it was likely the teacher wanted a transfer for a shorter commute and to get away from the principal and the other teacher, said the arbitrator.

The arbitrator also noted that the 15-kilometre distance recommended by the doctor was based on discussion with the worker and not medical evidence.

The arbitrator concluded that the TDSB didn’t need to transfer the teacher to fulfill its accommodation obligations.

Reference: Ontario Secondary School Teachers’ Federation and Toronto District School Board. Jesse M. Nyman — arbitrator. Michael Hines for employer. Susan Ursel, Karen Ensslen for employee. Jan. 13, 2020.

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