A teacher struggled with a serious, progressive hearing loss.
She bought an analog hearing aid in the early 1990s (the available
technology at the time). Her hearing got worse. She couldn't
communicate effectively – which of course is an essential
part of teaching. In 2008 the teacher's audiologist said she
would benefit from new technology, digital hearing aids. She
purchased them. The teacher and her union later argued that the
hearing aids were a required accommodation measure. They asked the
employer, the school board, to contribute to their cost. The
employer said no.
It wasn't as if the school board was refusing to accommodate
the grievor. In fact, very significant efforts had been made. The
employer permitted the teacher to work at the school of her choice,
so she wouldn't have to drive far and risk dizziness. Her job
responsibilities were modified so she could work with small groups
of students. They built her an office out of soundproof materials
and provided her with a special telephone for the hearing impaired.
However, the teacher found she was still unable to adequately
perform her teaching duties without the use of a digital hearing
Arbitrator Gordon Luborsky ordered the school board to
contribute toward the cost of the teacher's digital hearing aid
and its maintenance. He left it to the parties to work out the
exact amount, but suggested that the employer's contribution
should reflect the percentage of time the device was used at
work..., approximately 17.5% in this case.
The cost to the employer was not significant (around $400). It
did not argue the accommodation caused it undue hardship. But the
decision did cross a line which the employer thought existed - that
assistive bodily devices, such as hearing aids, eye glasses and
prosthetics, which are calibrated and integrated with the
employee's body, need not be considered when fulfilling the
duty to accommodate. After all, were they not personal items - part
of the employee's cost of everyday living? Shouldn't the
employer's responsibility be limited to any negotiated
contribution toward a group benefits plan?
Looking ahead, Luborsky noted: "With changes in technology
that may interface intimately with the individual's body...what
might previously have been considered a "bright line"
between the world of the employer and that of the employee in the
search for appropriate accommodation has become
Our traditional means of workplace accommodation have focused on
modifying duties and physical arrangements. With technological
advances, the potential for new kinds of personal assistive devices
to overcome disabilities is endless. Now, parties who have been
under the impression that employees are responsible for the cost of
their personal assistive devices, such as hearing aids, may
question that assumption if they are used for work, in the wake of
What Should Employers Do?
It is always prudent to review group insurance plans and ensure
they provide coverage appropriate for your particular workforce. In
at least some cases it may be arguable that such plans fulfill the
employer's duty to accommodate with respect to assistive
devices. Beyond that, employers will want to carefully consider the
reasonableness of an accommodation request which involves a
contribution toward the cost of a personal assistive device.
Finally, employers who decide to contribute should ensure that
the amount of their contribution reflects an appropriate balance
between work and personal use, and establishes reasonable
expectations for others in their workplace.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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