Does the A.B. decision change the approach on telework as an accommodation?

No. This decision, while supporting many of the arguments made by the union, is in line with the case law on accommodation and does not change the approach or create additional obligations for employers.

Does the employer have to provide full-time telework as an accommodation when requested?

No, they do not. The employer must still assess each situation on a case-by-case basis and can decide what the appropriate accommodations are, as long as they meet the member’s limitations. This can include accommodations within the office or telework, depending on the needs of the employee and the range of modifications possible within the office environment.

What medical information must be provided to the employer to support accommodation requests?

Three paragraphs from the A.B. decision can shed light on this question, as follows.

[40] The FAF asks three broad questions and then has a list of physical or mental limitations that a physician can check off if they apply to an employee. The psychiatrist wrote that the grievor was fit to perform his duties if he worked remotely and that this condition was permanent. He described the grievor’s functional limitations as “difficulty in focusing, marked distractibility, poor organisation in presence of other [sic] (as in office atmosphere).” He ended with the additional comment that the grievor “did not do well in office atmosphere with others. Has been doing well working remotely.” Finally, he checked off five limitations under “Mental Health”: “Thinking/reasoning”, “Concentration”, “Memory”, “Critical decision-making [sic]”, and “Interpersonal contact”.

[47] The grievor’s representative candidly admitted during closing argument that if this were the extent of the medical information provided to ISED, the grievor would have no argument and would not be pursuing this grievance. I agree. The medical information provided before his grievance does not justify a request for telework to accommodate a disability.

[48] By contrast, the medical information that the grievor provided after April 4, 2024, was detailed and specific about his disability and the limitations that his disability places on him. The grievor testified about his disability. His psychiatrist also testified about it, along with his therapist. His psychiatrist prepared some short correspondence about the grievor’s disability. His therapist prepared lengthy and detailed correspondence about the grievor’s disability, and when ISED asked questions, his therapist provided lengthy and detailed answers.

If this decision does not change the approach on DTA, how does it help the union in accommodation cases?

While it does not introduce any new DTA principles, the decision does make some important statements that support what we have been saying to employers about their obligations. First, many managers have insisted on RTO at all costs and refuse to consider telework as an accommodation. This decision makes it clear that an employer cannot rule out telework as an accommodation option and should be open-minded. The decision also confirms that the Direction on Prescribed Presence in the Workplace has to be applied in a flexible way and does not trump the duty to accommodate.

What should a local representative do in these types of cases when approached by a member for representation?

CEIU recommends that locals consult with an NUR in advance of providing advice and guidance to members and before referencing this decision in communications with the employer, to ensure that realistic expectations are managed and that the caselaw is being applied based on the individual facts of each case.

We also recommend reading the decision in its entirety to avoid assumptions about what the cases says out of context.