Covid-19, telework and vulnerables people
A win for the SPPREQ: Arbitration tribunal confirms the duty to accommodate of the School Service Centre and the determinant nature of the opinion of the treating physician.
On August 13, 2021, grievance arbitrator André C. Côté ruled in favour of the Syndicat du personnel professionnel de l’éducation de la région de Québec (SPPREQ-CSQ) in a dispute with the Centre de services scolaires des Premières-Seigneuries1 . This case involved a professional working in Education Services. In the fall of 2020, with the return to work partly in person, she wanted to continue to perform her duties exclusively through telework, as was the case at the beginning of the pandemic, for health reasons, as recommended by her doctors. She suffers from two chronic illnesses: severe chronic rhinosinusitis, chronic urticaria and asthma. All three of the employee’s treating physicians recommended telework because of the risk of complications from COVID-19 if she were to contract the virus.
Despite the numerous medical reports sent to the employer, the latter refused to accommodate or even discuss the matter with the Union, on the pretext that the professional’s health condition was not on the list of pathologies recognized by the INSPQ and that it therefore did not consider her to be a vulnerable person who could benefit from a telework exemption. The employer required her to report to work as scheduled. Faced with the employer’s closed-minded attitude, the professional began sick leave.
The SPPREQ filed a grievance on the grounds that the refusal to accommodate the professional was discriminatory within the meaning of the Charter of Human Rights and Freedoms, and constituted discrimination on the basis of disability.
Arbitrator Côté ruled in favour of the Union. Exercising the right to refuse under the Occupational Health and Safety Act was not the only recourse available to her in the circumstances. The grievance arbitrator is fully competent to deal with a dispute concerning the respect for fundamental rights and accommodation measures under the Charter.
The arbitrator had to decide whether the employer’s refusal to grant specific treatment to the professional and its decision to assign her to duties that were partly in-person and partly telecommuting, like any other Education Services employee, was discriminatory. Arbitrator Côté affirmed that this was indeed the case. Arbitrator Côté stated:
“The precise and concordant testimonies of her three treating physicians make it possible to understand that the chronic disease affecting Ms. (…) is characterized by a hypersensitivity of the respiratory tract which makes her particularly vulnerable to viral infections likely to cause very serious respiratory and pulmonary complications for her, especially since, as Dr. Hébert points out, her medication weakens her immune system.
All three state without contradiction that given her condition, any exposure to the COVID-19 virus was high risk and clearly contraindicated.”
The preponderance of evidence is clearly to the effect that any exposure to this virus, which attacks the respiratory system in particular, exposes her to a risk of severe complications, putting her health in serious danger, as well as to all the potential known consequences.
The arbitrator did not accept the testimony of the employer’s physician, whose report was written without a clinical examination, without consulting the treating physicians, and which was based on a single questionnaire administered by a third party. Their testimony did not match the precise, detailed, and concordant testimony of the three treating physicians.
According to the arbitrator, the INSPQ’s opinions must be taken with great respect. However, these documents must not be distorted into a precise and exhaustive list of diseases considered “at risk”. This does not mechanically resolve all cases and cannot replace an employer’s assessment of the particulars of each case, given other information submitted by treating physicians. The INSPQ specifically states that “the treating physician’s judgment of the patient’s vulnerability remains essential and should not be questioned.”
According to the arbitrator, the employer was wrong to refuse to recognize the particular vulnerability of the professional given the pandemic, and in its persistent refusal to grant the accommodations requested by the Union:
“By imposing on Ms. (…) an undifferentiated portion of in-person work, on the same basis as her co-workers, when she is disabled by a medical condition that makes her particularly vulnerable in the circumstances of the pandemic, the Employer placed her in a situation where she was torn between the need to obey her employer’s directives in order to protect her income and, ultimately, retain her job, and the considerable risks identified by her treating physicians as inherent to her disability.
In these circumstances, the Employer’s constant refusal to consider her as a vulnerable person and to consider the necessary accommodation measures given her disability, constituted a priori a discriminatory act for a prohibited reason within the meaning of the Act and the collective agreement.”
The Court indicated that the employer, who did not recognize from the outset the particular nature of the professional’s health condition, and the dangers of exposing her to the virus, stuck to its guns, refusing any possible accommodation.
The evidence is clear that the employer could have accommodated her without undue hardship since the portion of her duties requiring in-person work was relatively limited. Additionally, co-workers were willing to cooperate and take on in-person assignments in exchange for some other tasks.
In short, the Employer discriminated against the professional by consistently denying the serious health problems she faced as a result of her disability in the context of her work during the pandemic and by refusing to discuss the possibility of making any accommodation with her and her Union.
The arbitrator ordered the employer to agree with the Union and the professional on accommodation terms that respected the opinion of her treating physicians, compensate the professional for lost wages and other benefits, and award her moral damages for the anxiety, stress, and inconvenience suffered as a result of the infringement of her fundamental rights.
MAP, attorney and union advisor