Accommodation request denied after ‘reasonable’ efforts by TDSB

Worker restricted commute to personal preferences

Accommodation request denied after ‘reasonable’ efforts by TDSB

An Ontario school board worker with injury-related driving restrictions didn’t co-operate with accommodation efforts that didn’t fit with her preferences, an arbitrator has ruled.

The 52-year-old worker was employed with the Toronto District School Board (TDSB) as a safe and caring schools office assistant at Vaughan Road Academy school. Her commute in the mornings usually took between 50 and 70 minutes, with the afternoon return trip taking two hours or more of driving.

On Sept. 1, 2017, the worker tripped in the school parking lot and injured her knee. She was diagnosed with a medial collateral ligament tear and she received workers’ compensation benefits until November, when she began a graduated return to work. Her injury prevented her from driving, so the Ontario Workplace Safety and Insurance Board (WSIB) paid for her to take taxis to and from work until June 2018.

Two weeks after the worker resumed driving herself, her knee locked up while driving and she had to go off work again. Her doctor completed a functional abilities form that indicated the worker could use public transportation and drive for a maximum of 30 minutes.

At a return-to-work meeting in February, the worker said public transit wasn’t an option as she had difficulty with stairs. The TDSB suggested she break up her drive, but the worker said that wasn’t feasible and the union suggested she work closer to her home. The TDSB believed her regular position was suitable with accommodations.

A couple of days later, the worker experienced pain and swelling in her knee and she provided a doctor’s note stating that she was unable to sit, stand, or walk and she was “not able to drive to and from work.”

On March 4, the worker provided a medical note stating that she was fit to return to work with a maximum commute of 15 minutes by car. A psychological assessment reported that the worker “seems to be afraid of driving long distances” and recommended that she work closer to home.

In July, the worker provided a functional abilities form with permanent driving restrictions of 30 minutes. The form stated that taking breaks would exacerbate her pain.

The TDSB offered the worker a job that was a 17- to 45-minute drive from her home, but the union rejected it because it had lower pay and wouldn’t always fit within her driving restrictions. The board also offered a temporary transfer that was within her restrictions if she took a toll highway, but the worker rejected it as it was different from her normal position.

On March 1, the worker provided a doctor’s note stating that the worker was “totally disabled” and couldn’t perform her job duties “in any setting.”

The union claimed that the TDSB failed to accommodate the worker, pointing to multiple positions at the TDSB office — a 12- to 35-minute drive from the worker’s home — but the TDSB argued that the worker wasn’t qualified for them and some would amount to a promotion.

The arbitrator found that the worker refused to consider other alternatives to driving continuously on her commute, including breaking up her drive or taking public transit. In addition, the two positions the TDSB offered were reasonable attempts at accommodation, but the worker refused to consider them. The TDSB also continued to offer modified work in her original position, said the arbitrator.

“In my view, the adverse impact is not caused by the [worker’s] needs, but rather the adverse impact is related to the [worker] unreasonably restricting her commute based on her personal preferences,” said the arbitrator.

The arbitrator determined that the TDSB made reasonable efforts to accommodate the worker and the last doctor’s note indicated that she was totally disabled and couldn’t be accommodated in any manner.

Reference: Toronto District School Board and CUPE, Local 4400. John Stout — arbitrator. Daniel Fogel, Sean Eginio for employer. Megan Reid, Andrea Vitopoulos for employee. May 5, 2020. 2020 CarswellOnt 15019

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