In the recent decision of A.B .v. Treasury Board (Department of Industry), an adjudicator confirmed that the duty to accommodate trumps the federal return to office (RTO) mandate, emphasizing that this is made clear within the Direction itself.  

The adjudicator noted that the Directive on Prescribed Presence in the Workplace does not stipulate that all employees have to be present in the office, on the contrary, it instructs managers to consider individual circumstances “on a case-by-case basis, including human rights obligations”.   

Although this decision confirms human rights principles that are already well-known and understood in duty to accommodate cases, many federal public service managers have been ignoring them since RTO was first implemented. CEIU has filed dozens of individual grievances as well as a policy grievance to enforce these important rights. This decision serves as a reminder to the departments that the RTO direction is not set in stone and they cannot ignore their obligations under the Canadian Human Rights Act when an employee has a disability or other human rights-related need for accommodation. 

What does the decision say? 

In this case, the grievor suffered from post-traumatic stress disorder (PTSD) and requested full-time telework, where he could control his environment. The grievor provided detailed medical information to support his accommodation request. The employer refused telework and required that he attend the office in person with the following accommodations: a noise-cancelling headset, a cubicle away from other employees, and attending the office on less-busy days. 

The medical evidence showed that the accommodations proposed by the employer did not actually meet the employee’s needs, whereas full-time telework would have met his restrictions. Yet, the employer continued to refuse to accommodate the employee with telework. At the hearing, the employer insisted that allowing full-time telework as an accommodation is a “last resort”, but the adjudicator disagreed, stating that it is simply “one of the many possible accommodation measures in an appropriate case”.   

The employer also attempted to argue that full-time telework was only the grievor’s “preference” and not a requirement. However, the adjudicator noted that “An employee does not have to dislike the accommodation measure for it to be necessary. Making employees miserable is not the purpose of the duty to accommodate. The fact that the grievor would prefer to telework is irrelevant to assessing whether the employer’s proposed accommodations were reasonable.” 

The adjudicator also made the following statements in their ruling:  

[199] The [employer] also ignored the cognitive dissonance of its approach. On the one hand, it is stating that telework is a last resort. On the other hand, it is stating that the grievor should return to the office to be placed in isolation on the two least busy days of the week. This begs the question: why should he be in the office in the first place? 

 [200] …My point is that nobody at ISED seemed to turn their mind to why having the grievor hidden away in the corner of the office on days when very few other employees were there served anyone’s interests. The only answer that I can reach is that they had tunnel vision and wanted to avoid telework at any costs under a mistaken view that this is what the Direction required. This tunnel vision was reckless in that it showed indifference toward the individual circumstances of the grievor. (emphasis added) 

The adjudicator declared that the employer breached the No-Discrimination clause of the collective agreement and ordered that the employer permit the grievor to work remotely for a period of no less than two years, after which they could review the situation in accordance with the duty to accommodate policies (which allow for regular review). The adjudicator ordered damages for lost salary and reinstatement of sick leave credits, as well as damages for pain and suffering and for the employer’s reckless conduct pursuant to the Canadian Human Rights Act. 

What does this mean for employees who need telework as an accommodation? 

This case makes it clear that full-time telework is not a “last resort” but is one of the accommodation options that must be considered by the employer. The duty to accommodate trumps any employer policy, including the Directive on Prescribed Presence in the Workplace.  

However, it is important to remember that each case must be dealt with on an individual basis and that employees must provide relevant information to support accommodation requests. In the case of disability this means that, when requested, employees must provide medical information that outlines their limitations (but not including diagnosis or treatment details). This information needs to include enough details to address specific limitations and cannot be general. For example, a medical note that states the employee “should work from home” or “would benefit from telework” is not sufficient. Instead, the medical information should refer to specific aspects of the work that the employee cannot perform or that must be modified to allow the employee to perform their job.   

If the employee has provided information of specific limitations that cannot be accommodated within the office environment, the employer must consider full-time telework as an accommodation. Further, the employer cannot insist on in-office accommodations if those proposed accommodations clearly do not meet the disability-related needs of the employee.  

If you have a situation involving accommodations and need the assistance of the union, please reach out to your Local. 

More information: FAQ for Local Representatives.