A recent arbitration decision is helpful for employers dealing with accommodation requests, particularly with respect to a request to be transferred to a different location.

In Ontario Secondary School Teachers’ Federation and Toronto District School Board, Grievance # 13-50 (Accommodation), the grievor, a secondary school teacher who suffered from chronic pain and fatigue, made an accommodation request to be transferred to a school located within 15 kilometers of her home. The Toronto District School Board (TDSB) refused the transfer request and offered her various in-school accommodations, which she rejected, insisting that she be transferred to a school closer to her home. Arbitrator Nyman found that there was no prima facie discrimination, and even if there was, the TDSB had fulfilled its duty to accommodate.

Facts

Since 2003, the grievor worked at the school in Toronto, which was 16.5 kilometers away from her home. In 2006, the grievor moved to Markham and her work commute became much longer. From 2007 to 2011, the grievor continued to commute from Markham. She suffered from various diagnosed disabilities at that time. In 2011-2012, the grievor took a leave of absence.

When she returned to work in September 2012, she discovered that the principal of the school was someone she had serious interpersonal issues with. Within a week, she saw her doctor and requested accommodation to be transferred to a school closer to her home. The medical note stated that she needed to work within 15 kilometers from her home to accommodate her medical conditions. The TDSB sought further information with respect to her actual restrictions, and in particular, to understand why a 15 kilometer limit was necessary.

The grievor continued to work until mid-October 2012, and then remained off work.

In early November 2012, a meeting was held between the TDSB, the grievor and her union (OSSTF) representative. The TDSB offered to provide various in-school accommodations at the school, and suggested that such alternatives be tried before pursuing the issue of a transfer. The grievor refused and insisted on her specific accommodation request — to be moved to a school closer to her home — without reviewing the TDSB’s proposed accommodations with her doctor.

The TDSB then chose a medical specialist to review her file with the grievor’s consent. The specialist found that the actual medical restriction involved the grievor’s need to stretch her back every 20-30 minutes, and advised that she could still commute to school in a way that would allow her to stretch as necessary. Accordingly, the TDSB declined the transfer request.

The grievor continued to remain off work. The OSSTF filed a grievance, alleging discrimination and failure to accommodate. The grievance was referred to arbitration.

Decision

Arbitrator Nyman held that:

1. TDSB’s refusal to transfer the grievor did not amount to prima facie discrimination since the request was related to her preferences rather than her medical needs. In particular, the evidence did not demonstrate that her need to change schools was medically required.
2. Even if the grievor had established prima facie discrimination, there would be no failure to accommodate. The TDSB offered various in-school accommodations. However, the union and the grievor frustrated the accommodation process by refusing to consider any accommodation options other than being transferred to another school.

Notably, in assessing whether there was prima facie discrimination, Arbitrator Nyman considered the entire course of the parties’ conduct. Whereas TDSB was flexible in its approach in considering various options for accommodation, the grievor insisted on her preferred accommodation without considering the options provided.

Arbitrator Nyman stated that an employer is obligated to accommodate an employee’s needs, not preferences. Here, the grievor’s medical need to stretch every 20 or 30 minutes could be met regardless of whether her school was located within 15 kilometers of her home.

The evidence demonstrated that the grievor’s request to transfer schools was primarily due to her preference for a shorter commute and her interpersonal issues with the principal, and that her disability was not a factor in the adverse treatment caused by the commute.

Takeaways

The accommodation process is a collaborative one: both employers and employees have obligations to fulfill during the accommodation process. While an employer may have a duty to accommodate an employee’s commute to work, the employee has a duty to co-operate during the accommodation process by:

• providing sufficient medical information to allow the employer to understand the employee’s functional job limitations, and
• considering other accommodation options offered.

An employee’s refusal or failure to participate in the accommodation process will defeat any claim based upon allegations of discrimination.

As well, the doctor’s role is not to solve the problem itself (i.e. transfer to a school within 15 kilometers of employee’s home), but rather, to identify the restrictions. It is up to the employer to then assess the employee’s functional limitations as advised by the doctor and to consider accommodation options.

When employers receive accommodation requests which are related to an employee’s commute to work, they should:

• seek medical evidence relating to the employee’s functional limitations (if applicable),
• consider whether any of the protected grounds under the Ontario Human Rights Code (such as disability or family status) creates a disadvantage for the employee, rather than any disadvantage being a result of the employee’s choice, and
• assess accommodation options that address the employee’s needs and not preferences.

Best practices: Importance of policy and process

It is crucial for employers to have an accommodation policy and process. In responding to requests for accommodation, employers would be well-advised to adopt the following practice tips:

• Have one process for responding to all requests for accommodation, even those that may seem unconventional. The process should be a two-way dialogue between the employer and the employee (and a three-way dialogue if a union is involved). Maintain communication with the employee throughout the process.
• Do not dismiss any requests out of hand.
• Require appropriate information, including medical documentation if applicable, speaking directly to the employee’s ability to do the job. Do not request specific diagnosis, information irrelevant to job duties, or the entire medical file. Requests for information should be justifiable.
• Research and educate yourself. Work with the employee to understand the needs and limitations, and how the ground intersects with job duties. Do not stereotype.
• Assess whether there is a legitimate need for accommodation.
• Consider options for accommodation. Employees are not entitled to their preferred form of accommodation; employers are entitled to ascertain what options are available, and choose a reasonable option. In considering whether accommodation would cause undue hardship, and in comparing available options, employers can consider the cost, outside sources of funding, and health and safety requirements of the job (if any). Remember, some hardship is acceptable.
• Document all considerations and assessments. This will help prove that you have  taken every step up to the point of undue hardship, and as a result, you will be in a much stronger position to defend a discrimination claim.
• If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
• Maintain confidentiality.
• Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.

By Nadia Zaman