In a recent arbitration case between the International Brotherhood of Electrical Workers (I.B.E.W.) Local 636 and Hydro Ottawa Limited arbitrator Joy Noonan dismissed a grievance from the Grievor, who claimed that the employer failed to accommodate her request to work from home during her pregnancy, as recommended by her physician. The grievance alleged that Hydro Ottawa breached the Collective Agreement and the Ontario Human Rights Code by not allowing Lafleur to work from home (WFH) due to severe pregnancy-related sickness. The Union sought various remedies, including a breach declaration, sick leave reimbursement, damages ranging from $20,000 to $50,000, and sensitivity training for the employer’s staff.
The Grievor worked as a dispatcher. During the COVID-19 pandemic, Hydro Ottawa temporarily allowed dispatchers, including the Grievor, to work from home. The Grievor found this arrangement effective. Hydro Ottawa, however, did not share her positive view of the WFH arrangement and directed dispatchers to return to the office on July 12, 2022, which coincided with her request to continue working from home due to her pregnancy.
Hydro Ottawa’s position was that it assessed Lafleur’s request in line with its standard procedures for sick leave and accommodation requests. The employer argued that Lafleur was too ill to work intermittently and was directed to use her sick leave, supported by her supervisor and the company’s Leave and Benefits Specialist. The employer maintained that it did not subject Lafleur to adverse treatment and that her request to work from home was not a legal entitlement.
The Grievor’s doctor testified that she experienced severe nausea and fatigue that was exacerbated by traveling but did not impose any specific work restrictions related to her work as a dispatcher. There was evidence that the Grievor was frequently too sick to work due to her pregnancy, particularly during the first trimester. Her supervisor was accommodating, allowing her to miss work or leave early as needed.
Duty to Accommodate Analysis
This case highlights a critical component of the duty accommodation analysis. An employee must establish a prima facie case for discrimination before the duty to accommodate is triggered. The analysis does not start with can an the employee be accommodated. It starts with whether there has been any adverse impact or treatment of the employee that needs to be addressed through accommodation.
Arbitrator Noonan referred to the Ontario Court of Appeal decision in Shaw v Phipps decision, which outlines the criteria for establishing a prima facie case of discrimination:
- membership in a protected group
- adverse treatment,
- a connection between the treatment and the individual’s gender or alleged disability.
The employer acknowledges that the Grievor, as a pregnant person, is part of a protected group under the Ontario Human Rights Code. However, there was no evidence of adverse treatment towards the Grievor, as her requests for sick leave were consistently approved without issue. Further, the employer’s actions, including consulting with the Leave and Benefit Specialist and Human Resources, were in line with standard procedures for handling such requests. The decision concludes that no prima facie case of discrimination was established, and therefore, no legal duty to accommodate was triggered.
Arbitrator Noonan emphasizes that there is no inherent right to work from home, and the logistics of commuting or living arrangements are not the employer’s responsibility. The Grievor was able to use her sick leave benefits when necessary, ensuring she was not adversely impacted by her pregnancy-related sickness. The decision notes that while working from home might have been more convenient for the Grievor, there was no factual basis to claim it as a right or entitlement in the grievance.
The grievance was dismissed, as the facts did not support the Grievor’s claim for accommodation or discrimination.