Accommodation boundaries defined in recent awards

Trio of decisions clarifies some limits of accommodation

Several recent arbitration awards have dealt with some non-standard aspects of accommodation of disabilities and deserve to be mentioned here in more detail.

An arbitration award reported recently by Canada Labour Views (CLV) Reports points out one important boundary: that the employer’s obligation to accommodate an employee pertains only to things over which the employer has direct responsibility. In Toronto District School Board and Elementary Teachers’ Federation of Ontario, the grievor demanded that the employer supply special hearing aids so she could interact better with the class she was teaching. The critical distinction made by arbitrator Pamela Picher was between modifying the physical workplace or the conditions of work and modifying the employee. The employer (which did not object to the employee’s work without the hearing aids) was not required to finance the devices. As a general principle, the duty to accommodate requires the employer to modify the workplace to permit the disabled employee to be productive within it and not to modify the disabled employee to fit the workplace.

Arbitrators are hesitant to require even medical examinations by a physician not of the employee’s choosing. This was reinforced by the Federal Court of Appeal last year in Canada (Attorney General) v. Grover where the court found that even the obligation to ensure a safe workplace “does not allow that an employer can automatically demand that an employee undergo a medical examination. Rather, to balance the employee’s right to privacy and bodily integrity, the employer must explore other options, to obtain the necessary information.” The requirements to justify intrusive measures such as drug and alcohol testing are even more stringent.

The employer cannot be forced to accept an accommodation that extends past the design and functioning of the workplace any more than it could require the employee to undergo a medical procedure as an accommodation.

The grievor in Canada (Treasury Board) and Lafrance suffered from a sleep disorder and wanted to work from home permanently as accommodation. Adjudicator G. Nadeau found that at least some attendance at the office was a bona fide occupational requirement for an office worker in a team environment, despite technological innovations that allow videoconferencing, e-mail, remote database access, etc.

And the final case, arbitrator W. F. J. Hood in Advanced Engineered Products and Advance Employees’ Assn. from 2007 reminds us that, while a disabled employee has the right to a productive job he or she can perform, there is no right to the same wage rate for the accommodated job as for the pre-disability job. In most respects, this was a textbook case: the employer admitted an earlier mistake and rehired the grievor, it worked extensively with the union to find an appropriate job, and the grievor’s colleagues did not object to him taking most of the lighter work on his shift. However, the new job he could perform was lower-rated than the former job he could not. “[The grievor] was at the top of his pay class … He cannot perform such duties now and therefore cannot, as of right, expect now to be paid the same as before his illness.”

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