Canadian Employment Law Today

December 1, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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THIS EDITION of You Make the Call features a teacher who requested accommodation for a hypersensitivity to electronic equipment. The teacher was employed with the Edmon - ton Public School Board. In 2010, when her daughter attended one of the board's schools, she raised concerns about radiofrequency (RF) and electro-magnetic (EM) radiation in schools. Over the next few years, she discussed the matter with school officials, the school su - perintendent, board trustees, and the Alberta Minister of Education and requested that WiFi not be installed in schools. She believed that RF and EM emissions from WiFi networks and computers could cause serious health prob - lems. However, the board continued to install WiFi in its schools. The teacher asked the superinten- dent in January 2013 to pause the installation of WiFi routers in schools, but the superintendent replied that it had received advice from Alberta Education, Alberta Health, Health Canada, and the World Health Organization that there was no threat to student health from WiFi signals. The superintendent also noted that WiFi was more cost-effective than physical connections for every computer and students depended on it to compete their work. From 2012 to 2014, the board issued sev - eral verbal and written warnings to the teach- er because she was using her position and school resources for her anti-WiFi efforts. She was warned to keep her role as a parent and community activist separate from her role as a teacher. In January 2014, the teacher was teaching kindergarten when she informed the school board that she had personal health concerns related to RF and EM radiation. She provided a note from her family physician stating that "she reports that when she wears an FM trans - mitter/microphones she develops headaches and other symptoms" and her use of those de- vices should be limited "if possible." In September 2015, the teacher provided another note from her physician saying that she had been diagnosed with Electro Hyper - sensitivity Syndrome (EHS) and the WiFi in her classroom should be turned off. However, many of the students used Chromebook com- puters, which required WiFi connectivity. The board agreed to consider turning off the router in her classroom and replacing her FM voice amplifier with a wired microphone, but it would depend on the impact to the learn - ing environment. After months of research, the board determined that removing the wire- less access point would hinder performance of the students' computers as well as those in other classrooms with access points for which the students' computers would search. It also determined that the removal of WiFi from her classroom wouldn't significantly reduce the exposure to EM fields from sources all over the school and outside, including the students' computers themselves and lightbulbs on the ceiling. Two months later, the teacher submit - ted another note recommending that the router in her classroom be disabled and the Chromebooks be replaced with wired com- puters. The board refused for the same rea- sons as before. In December 2016, the teacher once again requested the removal of the router in her class- room, as students in her new class didn't use Chromebooks. The school board again refused. The teacher filed a human rights complaint, claiming that her EHS was a physical disability and the school board was obligated to accom - modate her disability needs. ©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 YOU MAKE THE CALL Did the school board fail to live up to its duty to accommodate? OR Did the school board handle the situation appropriately? IF YOU SAID the school board handled things appropriately, you're right. A human rights officer found that the school board adequately considered the accommodation request and it reasonably determined that disabling the WiFi router in the teacher's classroom would have a negative impact on the students and the learning environment that outweighed any benefits. The teacher requested a review of the de - cision with the Alberta Human Rights Tribu- nal, reiterating that EHS has been accepted as a disability by the Canadian Human Rights Commission and the school board had a duty to accommodate. However, the tribunal agreed with the original decision, finding that there was insufficient information to estab - lish that the accommodation she was seeking would address her disability-related needs. All of the sources that the school board consulted indicated that the medical and sci- entific evidence "does not support a causal link with low levels of RF and EM emissions." There were also suggestions that symptoms could be related to other sources and not RF and EM exposure as well as the possibility that it wasn't a "single medical problem." The tribunal found that "EHS is character - ized by a variety of non-specific symptoms that differ from individual to individual" and, while real and potentially disabling, the condition had "no clear diagnostic criteria and there is no scientific basis to link EHS symptoms to EMF exposure." The tribunal found that the school board had no duty to accommodate the teacher. For more information, see: • Kliparchuk v. Edmonton Public School Board, 2021 AHRC 178 (Alta. Human Rights Trib.). Electro-sensitive teacher seeks WiFi shutdown in classroom

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