After injury, school worker faced restrictions to caretaker duties
An Ontario employer didn’t breach its duty to accommodate when it denied a worker after determined her restrictions prevented her from fulfilling the essential duties of the new positions, an arbitrator has ruled.
The worker was employed as a part-time cleaner for the Toronto District School Board (TDSB). When she was hired in November 2020, she worked four hours per day for a total of 20 hours per week. In December 2020, the TDSB promoted her to six hours per day for a total of 30 hours per week.
On July 9, 2021, the worker injured her lower back at work. She took time off work to recover and received workers’ compensation benefits.
The worker returned to modified work on Dec. 30, working four hours per day on a modified work assessment with restrictions on several caretaker duties. On Jan. 5, 2022, she submitted another modified work assessment stating that she could work six hours per day for eight weeks with a reassessment on Feb. 14.
On Jan. 18, the worker applied for a full-time caretaker position in a job bidding process. There were 15 such positions available, and she was initially considered to be promoted to a list of unassigned full-time caretaker positions for a group of schools classified as LC2.
Promotion denied due to restrictions
However, the TDSB reviewed her restrictions, which included no snow removal, no mopping, and no stairs, and a total of 31 job duties associated with the full-time position, and denied her bid. It was also concerned that the nature of the schools to which she could be assigned when replacing other caretakers didn’t fit with the worker’s restrictions, as two-thirds of the schools required a caretaker to work alone for all or part of their eight-hour shift.
With the worker’s restrictions, she needed other caretakers around to trade tasks that she was unable to do.
On March 14, there was another job bidding process for full-time positions and the worker submitted a bid. As before, the TDSB declined her bid due to her restrictions, despite the fact that she submitted an updated modified work assessment that allowed her to perform more duties without restrictions. The same thing happened when the worker applied on April 8.
On Jan. 5, 2023, the worker submitted a modified work assessment for signed by her physiotherapist. However, the TDSB believed that the worker had filled out most of it herself, based on the handwriting. It’s disability claim administration contacted the worker about it and the worker said she helped her physiotherapist to fill it out. The physiotherapist forwarded a medical clarification letter confirming the assessment.
On Jan. 27, the worker had a specialist appointment and planned to attend work later that day, but was unable to because of a medical procedure. When she called to advise she wouldn’t be in, her team leader said in a sarcastic tone to enjoy her long weekend. The worker said that he also asked her to submit a medical note.
On Feb. 1, the team leader emailed her advising that if she continued to stay off work, she would need a medical note and if she failed to provide one, she could be suspended with pay. Another email included an article in the collective agreement stating that termination of employment shall be confirmed when an employee is absent from work without permission for more than five consecutive work days without a reasonable excuse.
Duty to accommodate
The union filed a grievance for each denial of a promotion, alleging that the TDSB breached the seniority provisions of the collective agreement and failed to accommodate the worker under the Ontario Human Rights Code, which was incorporated into the collective agreement. The union argued that the TDSB failed to establish that it couldn’t accommodate the worker in the full-time caretaker position in a similar way as she was in the six-hour-a-day cleaner position, and it failed to reach out to the worker or the union for meaningful discussions about possible accommodations.
The union also filed grievances alleging that the worker was harassed when the TDSB questioned her modified work assessment and requested clarification in January 2023, as well as the threatening emails relating to her absences that same month.
The TDSB countered that it assessed the worker’s restrictions and determined that it couldn’t accommodate her, particularly since her restrictions were directly related to the nature of the schools she could be required to work at alone, which would prevent all the duties from being performed. Although the job duties of the part-time cleaner role and full-time caretaker position were nearly identical, it could accommodate the worker in the former because she worked afternoon shifts at a particular school where there were more caretaking staff present to trade tasks, the TDSB said.
The arbitrator noted that the duty to accommodate might require an employer to arrange a workplace to enable an employee to perform the essential duties of their work, but it doesn’t require permanent changes to the essential duties or permanently assigning them to other employees. Employees aren’t exempted from performing the essential duties of their position and the employer isn’t required to create a new position to accommodate an employee, the arbitrator said.
The arbitrator found that the worker had extensive restrictions set out in her modified work assessments that limited her ability to work in certain schools. The full-time caretaker positions for which the worker bid were meant to backfill a caretaker’s absence in any school, and with two-thirds of the schools requiring a single caretaker for most of the day, there was “a distinct possibility that the [worker] could be assigned to a school where she would be the only caretaker on duty” and she would be “likely be unable to perform the essential duties” of the role, the arbitrator said.
Accommodation in part-time position
The arbitrator noted that the TDSB was able to accommodate the worker in the six-hour cleaner position because she was consistently assigned to a large school with other caretakers. Therefore, the TDSB couldn’t accommodate the worker in a similar way with the eight-hour full-time position, said the arbitrator.
The arbitrator also found that the TDSB didn’t breach the procedural component of the duty to accommodate by not consulting with the union or the worker about possible accommodation measures. With the worker’s modified duties assessments outlining her restrictions, the worker had all of the relevant information to assess whether she could be accommodated for the unassigned full-time caretaker positions, the arbitrator said.
As for the harassment grievances, the arbitrator found that the TDSB was entitled to seek clarification regarding the Jan. 5, 2023, modified work assessment. However, although the TDSB was allowed to advise the worker that she could be denied pay, the subsequent emails that she could be terminated was “heavy-handed,” particularly since the worker had been in contact with the board during her absence and had indicated she would be getting a medical note, said the arbitrator.
The arbitrator dismissed all of the grievances, except for the one relating to the communications threatening termination for the worker’s absences in January and February 2023. See Toronto District School Board v. Canadian Union of Public Employees, Local 4400, 2024 CanLII 57531.
