In order to accommodate an employee with a disability, employers often have to adapt various aspects of their work environment to suit the employee’s needs (Ontario Human Rights Code, RSO 1990, c. H.19, s 5, 11, 17 [“The Code”]). However, the results from an arbitration done in 2011 investigated how far an employer’s responsibility extends, and where the line is drawn between accommodating accessibility and relying on the employee’s personal responsibility.
In Thunder Bay Catholic District School Board [“The Board”] and Ontario English Catholic Teachers’ Association [“The Association”], 2011 CanLII 38669 (ONLA) the arbitration revolved around whether a personal bodily assistive device, in this case a hearing aid, was a necessary requirement for an employer to provide for their employee. Traditionally employers would only accommodate employees by way of making changes to the workplace or methods of performing work, however this case considers whether providing personal bodily assistive devices would be necessary for the employer to provide for use in and outside of the workplace.
The case revolves around Ms. A, a secondary school teacher with a degenerating inner ear disorder. Ms. A’s ailment causes her hearing functions to deteriorate in addition to causing periodical vertigo.
The Board had gone to great lengths to accommodate other aspects of Ms. A’s disability. Ms. A was provided with a soundproof office to block out ambient noises and assigned to teach students one-on- one instead of in big groups. As well, Ms. A was provided a portable microphone system to supplement her hearing, a special telephone which was customized for those with hearing impairment, and she was assigned to a school near to her house in order to prevent vertigo over long drives.
The personal bodily assistive device that Ms. A is claiming compensation for is a set of digital hearing aids. Ms. A claims that the digital hearing aids are necessary for her to properly do her job. She claims that without the digital hearing aids she cannot complete her supervisory responsibilities, hear announcements, meet with parents, and deliver the required curriculum to her students.
The main issue in this arbitration is whether compensating Ms. A for the digital hearing devices is necessary for The Board to fulfill their duty to accommodate her under their collective agreement and to satisfy The Code.
The Board is not disputing any of the facts above, however their main concern is that once an allowance is made for one personal bodily assistive device (the digital hearing aids), there could be a strong argument for them to supply more. This could open the floodgates to possibly include devices such as eyeglasses and prosthetics. So far, The Board has refused to cover any portion of the cost of the digital hearing aids, and the two parties have sought out to resolve the issue through arbitration.
Gordon F. Luborsky, the arbitrator, found that The Board was interpreting the governing law too narrowly, and that it was found that The Board must partially cover Ms. A’s hearing device. The devices were found to be:
“Absolutely necessary in concert with the other accommodative measures put in place by the Board for Ms. A to fulfill her fundamental teaching duties or requirements in compliance with her statutory obligations and contractual expectations.”
In terms of the results of the arbitration, Mr. Luborsky ultimately left it up to the two parties to decide on a final outcome and reach a “reasonable compromise”, however he does make a suggestion. After a long calculation it was concluded that Ms. A spends about 17.5% of all the hours in a calendar year at work, therefore the arbitrator suggests that this is an appropriate amount for The Board to cover (about $400 per hearing aid).
To justify this decision Mr. Luborsky points out that as technology allows for more devices to interact with the human body the “’bright line’ between the world of the employer and that of the employee in the search for appropriate accommodation has become blurred, which is a trend that is likely to continue into the future.” [para 59] Furthermore, Mr. Luborsky looks to Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital and Sault Ste. Marie General Hospital, (1999) CA C28113 at para 55, which states:
the employer may provide devices and instruments that would allow the disabled employees to perform close to the same level as the able-bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the needs of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. [Emphasis added]
The important aspects of this case, besides the interpretation of The Code and the collective agreement between the Board and The Association, are the implications involved with extending workplace accommodation to include personal bodily assistive devices. Through relevant case law and statute a compromise was found that the Board was only liable for the portion of reimbursement that pertained to the use of the assistive devices during work hours. It is important for businesses and employers to be aware of these evolutions of the law in order to comply with the Code and provide the best possible assistance to employees.
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