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Get Back Jojo: Return to Office Justified, Accommodation Not Warranted Says Arbitrator

The recent arbitration decision in International Brotherhood of Electrical Workers (I.B.E.W.) Local 636 v Hydro Ottawa Limited provides significant insight into how employers should handle accommodation requests, particularly in relation to working from home (WFH) and health-related issues. This case serves as a critical reference point for employers navigating accommodation obligations under both collective agreements and human rights law, especially in a post-pandemic world where remote work requests are becoming more common.

Case Background

In this case, the Grievor (whose name was not Jojo), an employee of Hydro Ottawa, worked as a dispatcher and had been temporarily allowed to work from home during the COVID-19 pandemic. However, after Hydro Ottawa mandated a return to the office in July 2022, she requested continued remote work due to severe pregnancy-related nausea and fatigue, supported by a recommendation from her physician. Hydro Ottawa denied her request, citing that her job required in-office presence and arguing that she had been too ill to work consistently. The union claimed this denial was a failure to accommodate under the Ontario Human Rights Code, seeking remedies including permission to work from home for the entirety of her pregnancy, sick leave reimbursement and damages.

The Arbitration Ruling

Arbitrator Joy Noonan ruled in favour of Hydro Ottawa, emphasizing several key points:

1. No Legal Right to Work from Home: The ruling stressed that there is no inherent legal right to work remotely, even in cases where employees had previously been allowed to do so. While the Grievor may have found WFH more convenient during her pregnancy, the arbitrator noted that convenience alone does not constitute a right to accommodation.
2. Prima Facie Case of Discrimination: The arbitrator applied a clear test for determining whether the duty to accommodate is triggered. To establish a prima facie case of discrimination, the Grievor must prove:
• Membership in a protected group (in this case, pregnancy under the Ontario Human Rights Code),
• Adverse treatment, and
• A connection between the treatment and her pregnancy.

While the Grievor was clearly part of a protected group, the arbitrator found no evidence of adverse treatment. Hydro Ottawa had followed its standard procedure for sick leave, offering approved time off when necessary, and had acted reasonably in its decision-making. Since no prima facie case was established, there was no duty to accommodate triggered.

1. Workplace Logistics and Commuting Issues: The arbitrator underscored that challenges related to commuting, such as discomfort due to pregnancy, do not obligate an employer to approve a WFH arrangement. The decision reinforced that the burden of proof lies with the employee to demonstrate that a workplace accommodation is necessary, not merely preferable.

Key Takeaways for Employers

1. Accommodation Requests Must Be Assessed Individually: The ruling highlights the importance of a case-by-case assessment when handling accommodation requests. Employers should conduct a thorough analysis of whether there is evidence of discrimination or adverse treatment. The decision to deny accommodation should be supported by concrete business reasons and aligned with company policy.
2. Work from Home is Not an Automatic Right: This case clarifies that WFH, even if previously allowed during temporary periods such as the pandemic, does not become a default or continued right. Employers are not obligated to provide remote work as an accommodation if they can demonstrate that the nature of the work requires an in-office presence or if the employee’s health condition does not specifically require WFH.
3. Clear Communication and Documentation: Employers should ensure that all decisions related to accommodation are documented, including consultations with HR or benefits specialists, and that employees are informed of their options (such as sick leave). This helps demonstrate good faith and adherence to procedures if the decision is later challenged.
4. No Duty to Accommodate Lifestyle Preferences: The arbitrator made it clear that personal lifestyle preferences, such as avoiding a commute, do not fall within the scope of the duty to accommodate. Employers are only required to accommodate conditions that genuinely impact an employee’s ability to perform their duties.

Conclusion

The Hydro Ottawa decision provides employers with a robust framework for managing future accommodation requests, particularly those involving remote work. By carefully documenting their decision-making process and focusing on whether a prima facie case of discrimination is present, employers can navigate these complex situations confidently. This case also sets a precedent that remote work, while convenient, is not an automatic right, especially in industries that require in-person work. Whether you are working through an accommodation or encountering resistance with respect to a back-to-office mandate, the experienced team at CCPartners is here to help.