Duty to Accommodate Disabilities Takes New Turn in Canada

February 19, 2012 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

Employers are regularly called upon to modify the workplace or job duties in order to accommodate disabilities. But personal assistive bodily devices haven’t traditionally been part of the accommodation discussion in Canada. This may now be changing, according to a recent arbitration decision.

Teacher requires hearing aids
A teacher struggled with a serious, progressive hearing loss. She bought an analog hearing aid in the early 1990s. Her hearing got worse, and she couldn’t communicate effectively, which of course is an essential part of teaching.

In 2008, the teacher’s audiologist said she would benefit from new technology — digital hearing aids — and she purchased them. The teacher and her union later argued that the hearing aids were a required accommodation measure. They asked the employer, the local school board, to contribute to their cost. The employer said no.

It wasn’t as if the school board was refusing to accommodate the teacher. In fact, significant efforts had been made. The employer permitted the teacher to work at the school of her choice so she wouldn’t have to drive far and risk dizziness. Her job responsibilities were modified so she could work with small groups of students. They built her an office out of soundproof materials and provided her with a special telephone for the hearing impaired. However, the teacher found she needed the digital hearing aids in order to properly do her job.

Decision
The teacher’s union took to the matter to arbitration. Arbitrator Gordon Luborsky ordered the school board to contribute toward the cost of the teacher’s digital hearing aid and its maintenance. He left it to the parties to work out the exact amount but suggested that the employer’s contribution should reflect the percentage of time the device was used at work, approximately 17.5 percent in this case.

The cost to the employer was not significant (around $400). The board didn’t argue the accommodation was unnecessary because it caused it undue hardship. But the decision did cross a line that the employer thought existed — that assistive bodily devices such as hearing aids, eyeglasses, and prosthetics, which are calibrated and integrated with the employee’s body, need not be considered when fulfilling the duty to accommodate.

After all, were they not personal items, part of the employee’s cost of everyday living? Shouldn’t the employer’s responsibility be limited to any negotiated contribution toward a group benefits plan?

But Luborsky pointed to the Supreme Court of Canada’s decision in McGill University. It ruled that the individualized nature of disability accommodation means employers can’t apply rigid rules that limit the scope of their inquiry as to how a person might be accommodated. Contrary to that principle, the employer’s policy of not considering assistive bodily devices as a potential form of accommodation was contrary to its human rights obligations.

So what does the future hold?

Looking ahead, Luborsky noted: “With changes in technology that may interface intimately with the individual’s body . . . what might previously have been considered a ‘bright line’ between the world of the employer and that of the employee in the search for appropriate accommodation has become blurred . . .”

Our traditional means of workplace accommodation have focused on modifying duties and physical arrangements. With technological advances, the potential for new kinds of personal assistive devices to overcome disabilities is endless. Now, parties who have been under the impression that employees are responsible for the cost of their personal assistive devices, such as hearing aids, may question that assumption if they are used for work in the wake of Luborsky’s decision.

What should Canadian employers do?
It’s always prudent to review group insurance plans and ensure they provide coverage appropriate for your particular workforce. In at least some cases it may be arguable that such plans fulfill the employer’s duty to accommodate with respect to assistive devices. Beyond that, employers may now want to carefully consider the reasonableness of an accommodation request that involves a contribution toward the cost of a personal assistive device.

Finally, employers who decide to contribute should ensure that the amount of their contribution reflects an appropriate balance between work and personal use and establishes reasonable expectations for others in their workplace.

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