Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on October 22, 2020 within the category "Medical-legal issues". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
The grievor worked as a hearings advisor for the employer. At home, she had suffered a concussion which caused frequent and severe headaches. She provided a modified-duties form from her doctor with a series of restrictions, including a recommendation that the grievor work from home. The employer refused to allow the grievor to work from home as it believed it could sufficiently accommodate her needs in the workplace. An Ontario labour arbitrator found the actions of the employer were reasonable and dismissed the grievance.
Ontario Energy Board v Society of United Professionals (Walter), 2020 CanLII 64845 (ON LA) (Jasbir Parmar) (September 8, 2020)
The grievor began working for the employer in 2017 in a contract position.
She subsequently was appointed to a full-time permanent position in 2018 as a hearings advisor.
This was a clerical job which required a considerable amount of sitting and working on a computer with time-sensitive deadlines.
In March 2019, the grievor badly bumped her head at home.
She attempted to go in to work but later went to the hospital where she was diagnosed with a concussion.
After her injury and diagnosis, the employer permitted the grievor to temporarily work from home.
When her symptoms persisted, the grievor presented a note from her doctor recommending that she be permitted to work from home indefinitely for one to two days a week.
The employer immediately provided the grievor with a Restrictions and Limitations Abilities Form (RLAF), which was completed by her doctor recommending restrictions limiting her from sitting or standing for long periods, the need for frequent breaks and naps, and the inability to look at a screen for too long.
The doctor also stated that the grievor needed to work from home for two to four weeks.
In response, the employer stated that it could accommodate the needs of the grievor at work within the limitations outlined in the medical letter.
Specifically, it indicated the grievor would be able to change positions as frequently as desired, print documents to alleviate eye strain from a computer, and used the sick room for resting/naps when she needed.
The employer also informed the grievor in its response that, if she felt that these accommodations were not fitting, it was happy to discuss alternatives with her, or she could go on sick leave until she recovered.
The grievor rejected the accommodations plan because she said that it did not meet the restrictions articulated by her doctor, namely, the ability to work from home.
Specifically, the grievor explained that she needed a break every hour, and two-hour naps twice a day or a nap every three hours.
She also indicated that any reading for lengthy periods of time, on a computer monitor or paper, would give her a headache and affect her concentration.
Given that the grievor’s position required a lot of drafting documents on a computer to meet time-sensitive deadlines, the employer began to wonder whether the grievor should be working at all.
Shortly after a joint union-employer-grievor meeting where no resolution was found, the grievor informed the employer that “since there is no middle ground” with respect to her working from home, she would be exercising her right to sick leave for two weeks while she recovered.
The grievor was off for two weeks, starting in April 2019, and attempted to come back to work, but, ultimately, provided another medical note extending her leave until late May 2019.
The union filed a grievance on the employee’s behalf, submitting that the employer had not properly accommodated her disability.
Arbitrator Jasbir Parmar began her analysis by dismissing some of the supplementary claims for failure to accommodate forwarded by the grievor during examinations.
Specifically, the grievor alleged that the employer failed to accommodate her because her commute was more difficult with her concussion and that the implementation of using the resting room for her breaks would make her subject to ridicule and social stigma by her colleagues.
Arbitrator Parmar dismissed these allegations as they were never properly brought to the attention of the employer, and employers cannot be held to inquire or accommodate issues that it had no knowledge of.
Next, the arbitrator addressed whether the employer was required to follow the recommendations of the grievor’s doctor to have her to work from home. She ruled that the advice by the grievor’s doctor to allow her to “work from home” was a suggestion, not a mandatory direction:
“ The Employer’s proposed accommodation did not indicate the Grievor would be permitted to work from home. However, when the RLAF is read as whole, I find that Dr. Narayanan’s direction of working at home was not a restriction/limitation. After all, the statement “work from home” is not an identification of something the Grievor could not do. …[T]he restrictions [do not] explain why it would be that the Grievor was unable to perform work at the Employer’s premises. In the context of the restrictions the doctor did identify in the RLAF, in my view the reference to “work from home” was a suggested method of accommodating the identified restrictions.” [Emphasis added]
Arbitrator Parmar then considered whether it was unreasonable for the employer to suggest that the grievor take a sick leave during her recovery rather than trying to work:
“ I do not see anything inherently objectionable in the fact that the Employer indicated that the Grievor could opt to take sick leave. It is not unheard of for an employer to take the position, having offered reasonable accommodation, that an employee must accept that offer and cannot remain off work. In referencing sick leave, the Employer was indicating the Grievor still had options. Furthermore, the “take it or leave it” characterization fails to acknowledge that the letter also invited the Grievor to raise any concerns she may have. In inviting such concerns, it is evident, when reading the letter as a whole, that the Employer had not closed the door on this matter. The Grievor clearly understood that, given that she exercised the opportunity to raise her concerns.” [Emphasis added]
Finally, the arbitrator then addressed the employer’s argument that allowing an employee to work from home is not an accommodation since it would mean the employee is not working in the office:
“ I pause here to comment on the Employer’s submission that having an employee work from home is not an accommodation of the employee in the workplace, which is the core objective behind accommodation. It is an understatement to say that defining a workplace, even generally, by the four walls of an employer’s premises is outdated. For decades, employees have been participating in the workplace in all sorts of ways, including in very large numbers by working from home.” [Emphasis added]
In conclusion, Arbitrator Parmar ruled that the employer had satisfied its duty to accommodate and had not tried to unreasonably force the grievor into a sick leave.
The grievance was dismissed.
Implications for Employers
This case underscores the hard fact that, while arbitrators will certainly pay attention to medical letters and the recommendations of health professionals, they will recognize the difference between a suggestion and a mandatory direction coming from a physician. In an accommodation matter, employers have the discretion whether to accept a medical suggestion, but they are generally required to follow the mandatory direction from a health professional, unless they are willing to seek a second medical opinion to challenge the direction.
Implications for Unions
Arbitrator Parmar’s comment on work from home as a potential accommodation is a useful argument for unions that the duty to accommodate sometimes requires creative solutions. Covid-19 has changed the work world forever on this issue, and it is likely that, once the world returns to whatever the new normal will be, working-at-home accommodations will become more accepted, more frequently requested and more productive. Face-to-face meetings will never lose their value, but the ability to have productive meetings and to satisfactorily supervise employees remotely with Zoom and other new platforms means that working from home as an available accommodation has arrived.