Ontario employers are legally required to accommodate employees with disabilities that are protected grounds under human rights legislation. There can be various creative solutions that an employer and employee can devise to address barriers to the workplace, but how far does an employer need to go to fulfill their duty to accommodate? For instance, if a long commute to the workplace impacts an employee’s disability, to what extent and through what means is the employer required to accommodate?
This post will provide an overview of the employer’s duty to accommodate a disability in the workplace with reference to the case of Ontario Secondary School Teachers’ Federation v Toronto District School Board, in which an arbitrator found that the employer was not required to transfer the employee to a different location, even though her long commute appeared to be impacted by her disability. This post will provide important takeaways for employers and employees with disabilities.
Employers must accommodate an employee’s disability in the workplace, as required by human rights legislation. This means that employers must adjust their policies, procedures, and the employee’s working conditions to meet the needs arising from their disability. This can include adjusting the employee’s schedule, workplace location, duties, etc., so that the employee can effectively perform their duties.
The bar is quite significant for employers to accommodate employees with disabilities. Employers must make all reasonable efforts to accommodate the employee until the employer reaches a point of undue hardship.
Generally, there are two stages for an employer to have fulfilled their duty to accommodate, as they have procedural and substantial duties to accommodate.
An employer’s procedural duty to accommodate includes making efforts to have a detailed understanding of the employee’s needs so that they can properly accommodate. This may or may not incorporate the employee’s requests, however, the information gathered is an important step for the employer to address the employee’s needs appropriately. In particular, the employer should gather information on how the employee’s disability affects their job duties, requests sought by the employee, and whether any timelines for recovery may affect what short-term or long-term accommodations are required.
After the procedural stage, the employer has a substantial duty to accommodate. This means that the employer must find and implement solutions to address the employee’s needs, as revealed by the information-gathering stage. The employer must consider different possible solutions and whether alternatives may be appropriate. If there are no reasonable solutions, the employer is to explain this to the employee.
There is a high bar for employers to accommodate employees with disabilities. They are required to accommodate up to a point of undue hardship. Employers must make all reasonable efforts to accommodate an employee’s disability. Still, they are not expected to negatively impact the business, such as spending significant funds to accommodate. It is the employer’s responsibility to show that they cannot accommodate to a point of undue hardship, which requires specific and quantifiable evidence. If this cannot be proven, then an employee may be able to claim that they were constructively or wrongfully dismissed as their disability was not accommodated in the workplace.
In the case of Ontario Secondary School Teachers’ Federation v Toronto District School Board, an arbitrator addressed the question of whether the employer in the case was required to accommodate the employee’s disability by transferring her to a different location, which would reduce her commute time.
In this case, the employer was the school board. The employee was a teacher who experienced chronic pain. In particular, she provided medical evidence that she experienced fibromyalgia, scoliosis, chronic fatigue syndrome, seasonal affective disorder, asthma, sleep apnea, and irritable bowel syndrome. As a result, the employee continually experienced muscle pain and stiffness, which would leave her exhausted. To manage her conditions, she practiced yoga each day, and used a combination of medication, physiotherapy, massage therapy, and more. She testified that her conditions did not impact her ability to teach.
Her doctor testified that there is no cure for her fibromyalgia and the employee was simply required to continually manage her symptoms. He also told the Court that her symptoms could be worsened by driving.
When she first began working with the school in Toronto, she lived approximately 16.5 kilometers away. A few years later, her family purchased a home in Markham, which was 29 kilometers away from the school. She kept her original apartment and rented it out.
It would take the employee approximately 75 to 90 minutes each way to drive to and from the school to her home in Markham. She testified that she had tried different routes to get to and from the school to avoid traffic and limit her commute time or make stops along the way so that she could stretch. While her commute could be shortened if she went home right after classes ended, she would remain at the school for longer so that she could engage with students, assist with their extra-curricular activities, prepare for her classes, and complete administrative tasks.
There was an express highway that the employee had not tried to use, as she did not want to pay the highway tolls. There was evidence that she would save significant time by taking this highway during her commute. Her commute time would be reduced to approximately 35 to 70 minutes each way.
The employee requested that she be transferred to a different school, which was much closer to her home in Markham. The arbitrator noted that the employer is required to accommodate the employee’s needs, but not necessarily the employee’s preferences. Also, the arbitrator identified that the main issue was the length of the commute.
The arbitrator found that the employer fulfilled their duty to accommodate. They had tried to set up meetings to address the in-school accommodations and suggested a partial return to work, which would allow her to commute while there was less traffic. However, the employee refused to consider these as a solution and would only agree to a transfer to a different school.
In this case, the doctor’s evidence was that she had previously noted that the employee could sit for about 20 to 30 minutes before she needed to stand and stretch. The doctor equated this time to driving approximately 15 kilometers. The arbitrator noted that this did not suggest that the employee could not resume driving after stretching. Additionally, there was no evidence to suggest that going to work caused an adverse effect on the employee over time, as no deterioration was noted by the doctor and there appeared to be no other medical changes that exacerbated her symptoms.
The arbitrator noted that the employee had an obligation to accept reasonable accommodation offered by the employer. The employee had a duty to facilitate implementation of the proposed plan.
While there is a significant obligation for employers to fulfill their duty to accommodate the needs of an employee with a disability, an employee’s refusal to consider reasonable accommodation can frustrate the process. In these types of situations, an employee may have difficulty succeeding in their claim that the employer failed to fulfill their duty to accommodate their disability.
Our experienced employment lawyers at Haynes Law Firm in Toronto can assist you with issues concerning accommodating disabilities in the workplace. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims. Haynes Law Firm also assists employers to avoid liabilities that may arise from failure to properly accommodate employees with disabilities, which can lead to findings of constructive or wrongful dismissal. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.
To book a consultation, please contact us online or by phone at 416-593-2731.