Last June, an arbitrator opened up a potential can of worms in ruling that a school board must subsidize digital hearing aids for a teacher as part of its duty to accommodate short of undue hardship.
The crux of the matter is what is fair and reasonable as far as the employer’s responsibilities are concerned, an issue the Supreme Court of Canada and human rights commissions have wrestled with in the past.
In the decision in
Thunder Bay Catholic District School Board v. Ontario English Catholic Teachers’ Association, the employer needed only to subsidize a percentage of the costs for the teacher’s digital hearing aids.
But does this mean employers must now subsidize health-care requirements such as wheelchairs, eyeglasses, and canes if such aids are necessary for a person to continue working? The issue goes far beyond school boards.
The June 2011 decision begs the question: is an employer now responsible for providing the full gamut of our universal health-care system on behalf of its employees? Would that include those employers that don’t have a benefits program, those with part-time employees, and small businesses?
Let’s not forget that there’s no legislation requiring an employer to have an employee health plan.
Where do we draw the line in terms of employer responsibility to accommodate to the point of undue hardship? Let’s explore this issue in more detail and go back to an earlier decision.
In a 2007 grievance,
Toronto District School Board v. E.T.F.O. (Mootilal), an arbitration panel had to determine if the Toronto District School Board had to subsidize digital hearing aids for a teacher. The teacher, who had a 70-per-cent hearing loss, decided to upgrade her analogue hearing aids with better-quality devices.
The Toronto board’s policy was to allow for a lifetime benefit of $400 for hearing aids. In the Mootilal case, the teacher received $1,000 from a government assistive devices fund but still owed $2,470 to the supplier.
On her behalf, the Elementary Teachers’ Federation of Ontario grieved the board’s refusal to subsidize the remaining cost. It argued the board had a duty to accommodate “personal bodily assistive devices” that were necessary for the teacher to do her job.
A majority of the board of arbitration denied the grievance on the basis that the duty to accommodate didn’t oblige the employer to pay for personal assistive devices.
As well, the board of arbitration said the employer’s policy not to provide personal assistive
devices wasn’t discriminatory because it wasn’t a “standard governing the performance of work.”
Indeed, the board of arbitration questioned whether the duty to accommodate an employee with a disability required providing modifications to the staff member’s body or whether the employer could limit its accommodation to modifying the workplace or the job itself.
The board of arbitration found that nothing forces employees to equip themselves with such devices.
It concluded that the employer, in fulfilling its duty to accommodate, had only to “modify the workplace, including such factors as the work environment, the job assignment and/or the work methods and tools, to the point of undue hardship” and not to “supply such things as personal bodily assistive or prosthetic devices when requested by the employee as his or her preferred means of accommodation.”
In the Thunder Bay case, the board had already spent $10,000 to modify the teacher’s workplace by constructing a new office for her out of soundproof material and installing a specialized hearing-impaired telephone for her exclusive use.
The board also contributed to the purchase of a digital microphone at a cost of approximately $500. In effect, the board took the 2007 Mootilal decision and modified the workplace accordingly.
Two years later, a doctor said the woman in the Thunder Bay case should get digital hearing aids, so she purchased them at a cost of more than $2,000 each. Then the teacher submitted the invoices and medical documentation to the board for reimbursement.
The board relied on its internal policy and refused to reimburse her. In line with the Mootilal decision, the board disputed that it had any obligation to provide personal bodily assistive devices, including eyeglasses and prosthetics.
It argued its obligation to accommodate stopped at making reasonable changes to the workplace or methods of performing the work short of undue hardship.
That ultimately led to a grievance. The union grieved the board’s decision on the basis that the teacher needed the digital hearing aids in order to perform her duties.
It argued the board had violated the collective agreement and the Ontario Human Rights Code by failing to consider the purchase of the hearing aids as part of reasonable accommodation.
In allowing the grievance, the arbitrator held that the ability to communicate effectively with pupils, parents, and colleagues was a statutory obligation and, therefore, created a workplace standard that would judge a teacher’s performance.
The arbitrator then found the board’s policy too narrowly construed its obligations to accommodate employees with disabilities. The arbitrator said the digital hearing aids were necessary accommodative measures for the griever.
In this respect, the arbitrator distinguished Mootilal by finding that the griever had medical evidence showing that she absolutely required digital hearing aids in order to perform the essential requirements of her job as a teacher of special education and advanced English.
However, the arbitrator did find some merit with the board’s position that it didn’t have to subsidize the entire cost of digital hearing aids since the teacher also used them in her personal life.
The board submitted that, based on the school calendar, the griever was at work for only 17.5 per cent of the year. Persuaded by this argument, the arbitrator found that the board was responsible only for that portion of the costs.
Based on the Thunder Bay decision, we can reach the following conclusion: While employers may determine appropriate accommodation for their staff, they may not exclude consideration of certain types or forms of it.
At first glance, this doesn’t seem to change the rules since an employer doesn’t have to provide perfect accommodation and an employee must still accept reasonable actions. But I question whether this ruling will place additional onus on employers in terms of medical benefits.
In the Thunder Bay decision, the arbitrator responded to the employer’s argument about opening the floodgates to claims by stating that employees seeking assistance for things like eyeglasses, medicines, and prosthetics would have to show that other appropriate means couldn’t accommodate them and that accommodation wouldn’t result in undue hardship.
Despite these comments, we can expect to see an increase in claims for reimbursement from employees who need personal bodily assistive devices to perform the bona fide occupational requirements of their positions, especially from those who don’t have comprehensive employer medical benefit plans.
Bryce Chandler is an associate with Shibley Righton LLP’s Windsor, Ont., office. His practice is primarily focused on labour and employment law, as well as education and administrative matters.
