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Victor Malca P.A. has over 27 years of litigation experience in Workers Compensation and Social Security Disability lawsuits. His experience and continued success in fighting for his clients puts among the most trusted workers compensation lawyers in Florida. Our area of expertise is in representing injured workers on compensation benefit cases and disabled individuals claim social security disability benefits.
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About The Author
Judy Ponio is a writer for Victor Malca Law P.A. and enjoys helping people with questions about social security, workers compensation, and other serious matters involving peoples livelihood. She is not an attorney and her writing should not be considered legal advice.
Q: What Information Can My Employer Request From Me While I Am On Sick Leave
A:;Your employer has the right to information which will allow it to: verify the legitimacy of your absence;;understand your prognosis; and safely return you to the workplace. For example, your employer may request a note from your treating physician confirming the necessity of your absence.
Employers, however, are typically not entitled to know your diagnosis or the specifics of your illness. As such, while an employer would have the right to know that you can return to work with reduced hours, for example, the employer would not have the right to know you are experiencing clinical depression.
After Being Unable To Work At My Own Job For Two Years Can My Insurance Company Stop Paying Me My Benefits
For most policies you are entitled to claim long term disability benefits for the first 2 years of being unable to perform the essential duties of your own job. This is called the Own Occupation Test. After this 2 year time period your eligibility for long term disability benefits will likely change. It will then be based on whether you are unable to perform any occupation for which you are reasonably qualified, or could become qualified for, by taking into consideration education, training or experience. This is called the Any Occupation Test.
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Termination Of Employment For Employee On Disability Leave
With some limited exceptions, employers and employees have the right to terminate an employment contract at any time. Your employer can dismiss you from employment for almost any reason. You have the right to resign from your employment at any time and for any reason. Your rights as the employee being fired are different depending on the situation. There are three types of employment dismissal scenarios:
- Dismissal without cause
- Dismissal for frustration of contract
- Constructive dismissal
Your Duties As The Employee
As an employee you also owe duties to your employer. These duties include:
- attending work on time;
- not engaging in improper conduct or behaviour ;;
- performing work competently;
- maintaining good faith and loyalty to the employer; and
- to give reasonable notice of resignation.
As a person with a disability, or as someone who needs a sick leave, you will be in a situation where you will not be able to attend work on time or perform your work competently. Violation of these duties would normally be cause for the employer to terminate your employment; however, there are special protections for people suffering illness or disability. These protections arise from your employers duties to allow you to take a sick leave and to accommodate your disability.
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If You Run Out Of Paid Leave
Depending on your circumstances, you may request that sick leave credits be advanced to you to cover the period of your absence. This type of leave request is covered to the limit prescribed in your collective agreement or terms and conditions of employment.
You may also request leave without pay for illness or injury. Refer to Appendix B of the Directive on Leave and Special Working Arrangements for additional information.
What Policy Riders Can You Purchase With Long Term Disability Policies
A policy rider or endorsement provides extra coverage to your already existing long term disability policy. These riders are usually only offered with private disability policies and if not purchased at the time of the original application, will require that a medical form be completed before the rider can be added into the policy.
a) Cost of Living AdjustmentThis rider policy considers your salary and inflation yearly and adjusts your benefits accordingly.
b) Own Occupation to 65Professionals or people with specialized skills may find this rider policy beneficial as it eliminates the Any Occupation Test and provides the disabled individual with long term disability benefits as long as he/she is unable to perform the essential duties of their own occupation or until age 65, whichever is sooner.
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Employer Permitted To Terminate Employees Receiving Ltd Benefits
A recent New Brunswick Labour Adjudication decision addressed the sensitive issue of terminating permanently disabled employees on long-term disability leave . The decision,;United Steelworkers, Local 7085 and Brunswick Smelter, Glencore Canada Corporation,;2107 CanLII 20338 , provides a useful precedent for employers embroiled in such a dilemma.
Eight employees were terminated, on a non-disciplinary basis, by the Employer after it was determined that the employees were totally and permanently disabled and never able return to the workplace or any gainful employment. All of the terminations were grieved; however, six of the grievances were resolved in advance of the arbitration hearing. Thus, the hearing dealt with the termination of two employees. The two employees had been on an extended medical leave for six and eight years respectively.
The termination had no impact on the employees long-term disability benefits, which would continue until age 65, so long as the employees remained disabled.; However, the employee benefits that had been provided by the Employer ceased upon termination. These benefits included pension contribution payments and health benefits.
What If The Employee’s Job Is No Longer Available
Generally, employees should be returned to the job they had before the leave. However, if the job is no longer available, they must be given a similar position with the same or greater benefits and pay.
There may be some situations where employers do not have a position available for reasons completely unrelated to the leave. For example, employees who are on unpaid leave would not necessarily be protected from losing their jobs if the employer shut down part of their operations and reduced their workforce based on a seniority system.
Employers must show the leave has no impact on the decision to layoff or terminate the employment.
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Job Protection Under The Family And Medical Leave Act
A federal law known as the Family and Medical Leave Act provides employees with twelve weeks of unpaid leave per year to deal with one’s own medical issues or to take care of a sick member of one’s immediate family. Not all workplaces are subject to FMLA, and even in those that are, employees must meet certain requirements to be covered by the law. FMLA applies only to companies with 50 or more employees located within 75 miles of each other, and workers must have worked:
- for a total of at least one year for the employer, and
- for at least 1,250 hours in the preceding year.
Although FMLA leave is unpaid, an employee can receive short-term disability or long-term disability benefits while on FMLA leave. And, in fact, many employers require you to use your allotted FMLA time while you’re on disability. For many disabled employees, FMLA is the most important form of job protection they enjoy.
Your employer may not terminate you if you are on FMLA leave as long as you don’t go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar. If you do exceed 12 weeks of FMLA, even by a day, you run the risk of being terminated for excessive absences. Of course, if you’re fired while receiving disability insurance benefits, you’ll still continue to receive benefits according to the terms of your policy.
Business Shutdown Restructuring And Retrenchment
You may also lose your job if the company is restructuring or retrenching employees for other economic-based reasons. However, you may ask your employer for evidence that your name was not on a retrenchment list because of your disability. It has to be due to such valid reasons as past performance and the scrapping off of your department.
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Ontario Disability Support Program
This form of LTD coverage is for individuals who are disabled and arent able to enter the workforce or are in significant financial need at the time they become disabled. Income support from the ODSP is intended to help those with disabilities in financial need to pay for food, housing and other living expenses. Therefore, proof of financial need is required before coverage is provided.
Individuals receiving ODSP income support may be eligible for:
- health benefits ;
- disability-related benefits ;
- housing-related benefits; and/or
- employment incentives and benefits .
- Canada Pension Plan Disability Benefits
Do Employees Get Paid When On Leave
No. Employers are not required to pay wages to employees while on leave. For all leaves, the legislation only requires employers to provide the time off and allow employees to return to their job when the leave has ended. Employers can, and often do, give greater benefits than those provided for in the legislation.
However, other federal programs may provide income replacement. Employees should contact the federal government to find out what types of leaves have income replacement.
The only exception under The Employment Standards Code where an employer is required to pay a portion of a leave is under the Domestic Violence Leave.
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What Happens To Long Term Disability When Terminated
It depends on your disability insurance policy. If your disability benefits are paid by an insurance company, then your employment status wont affect your benefits. But if its paid by your employer, then your disability payments may cease.
Although, there are instances when your insurance company can legally terminate your benefits. Most of the time, its because you no longer meet the definition of disabled. Or sometimes because you refuse to cooperate with the insurance companys requests for information.
Ltd From A Private Insurance Company
Under a private LTD insurance plan your rights and entitlements will be set out in your contract. There is huge variability in what you can receive and the requirements for receiving it. It is common for private insurers to insist that you apply for CPP Disability Benefits to offset the costs of their payments to you. Whatever you receive from CPP will be subtracted from the amount they give you each month.
Your Long Term Disability Rights
Regardless of your LTD coverage, you are entitled to the following basic rights under the law:
- The right to accommodation
- The right to basic dignity
- The right to non-discrimination
- The right not to undergo unnecessary medical examinations.
If any of these rights have been violated you should contact an employment lawyer to help you file an appeal with your LTD care provider or launch a complaint with the Ontario Human Rights Commission.
KCY at LAW is an experienced team of professionals serving Halton, Hamilton, Toronto and Niagara. Get in touch online or call us to book your consultation 639-0999.
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What Types Of Disability Insurance Are There
Short Term Disability Insurance provides temporary income replacement if you are unable to work due to a medical condition . Usually this policy only covers income replacement for the first 120 days. Short term disability insurance benefits are usually purchased by employers for their employees
Long Term Disability Insurance offers a form of income protection in the event that an illness or disability leaves you totally or completely unable to return to work. It provides you with a portion of your income that can go towards living expenses which may also include medical treatment and rehabilitation. For the first two years if you are unable to meet the requirements of performing your own occupation then you are eligible. After two years you must be unable to perform the tasks required by any occupation for which you are reasonably qualified, or could become qualified for, by reason of education, training or experience, in order to retain long term disability benefits.
Disability Mortgage Insurance provides you with financial support in the event that you become disabled and are unable to work. This policy covers all or part of your mortgage payment up to a certain amount bi-weekly or per month. There is typically a 60 day waiting period before you can receive benefits. There are also limitations in regards to duration and the amount of coverage that will be given.
Contract Law Versus Human Rights Code
The court held that the employment contract was frustrated precisely because there was no reasonable expectation of return. On the other hand, the Human Rights Code protects the employee from discrimination because of his or her disability.
Its a complex issue and comes down to the facts of each particular case. This is where legal opinion and assistance is crucial. Before this type of situation arises, it is also essential that you seek the advice of a Human Resource Management specialist.
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A Resignation And Constructive Dismissal
The fact that an employee has resigned does not shield an employer from liability for any discrimination that person may have experienced in the workplace. If a person resigns because of discriminatory practices, the employer needs to take steps to address and prevent such practices. A court or tribunal may find that employees who quit because they refuse to endure a poisoned work environment have been constructively dismissed.
The Commission has heard of cases where employees are given the opportunity to avoid termination by choosing to voluntarily leave employment. If there are any;Code-related reasons for the suggestion that the employee should leave, this would be discriminatory even though it might be argued that the employee left voluntarily.
Where an employee resigns suddenly in circumstances that indicate the employees decision may be affected by a mental illness or other disability, the employer should take steps to determine whether any accommodation is needed before accepting such a resignation. Even if no accommodation is sought, the employer should make sure that the employee understands the implications of the decision, has time to reflect, and is able to rescind the resignation within a reasonable period of time.
Can You Be Fired While On Long
There is a misconception that individuals in Ontario simply cannot be let go from their job when they are on a long-term disability leave/benefits.
Rather, for one, generally, employers in Ontario can terminate any employee without cause for most business reasons, at any time, including when they are on long term disability.
Second, employers can terminate any employee for cause, at any time, including when they are on long term disability.
Lastly, employers can sometimes argue that an employment relationship is terminated without liability because of frustration of contract when an employee is on long term disability leave.;;
The only thing an employer cannot do is terminate an employee because, in whole or in part, of the employees disability. The Ontario;Human Rights Code;provides that every person has a right to equal treatment with respect to employment without discrimination of disability. This means that employers cannot dismiss employees for reasons at all related to a disability, disability leave or receipt of disability benefits.;
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Why Has My Long Term Disability Claim Been Denied Why Have My Long Term Disability Benefits Been Terminated
An insurance company may deny your long term disability claim or terminate your long term disability benefits for a variety of reasons. Some of these might have a simple solution, such as making sure that they have all the necessary forms and documentation, but in other cases it might require the assistance of a lawyer to help you in your claim against the insurer in order to get the benefits that you are entitled to.
Issues may arise if you are not examined by insurance company approved doctors, you exceeded the time limitation in submitting a claim, there was a misrepresentation on the application as you had a pre-existing condition that you did not mention, there is surveillance evidence that contradicts your claim, there was a failure to have your injury or condition properly documented by your physician, you have not mitigated your losses by maintaining your treatment regimen, or there was a failure of your employer to provide the necessary documentation.
Similarly, insurance companies may argue that you do not have a claim or that you are partially or residually disabled . Instead, you are able to work part-time or with modified tasks. It may also consider your loss of earnings as a result of the medical condition. However, the benefits you would receive would be less than if you were receiving long term disability benefits.
Watch these videos explaining the top 10 reasons why an insurance company might deny your long term disability claim :
Management Is Critical: Employers Should Be Cautious
Disability leave is protected under labour laws. In the case of a disability claim in your workplace, it is critical that HR Managers be highly pro-active. This includes offering opportunities for the disabled team-member to return where possible even in a new role. No HR Manager should aggressively move to dismiss without offering several opportunities to return and certainly not without medical evidence that specifies no return in foreseeable future. Near future would not be sufficient. Dismissal isnt an option until the employee is on extended leave.
If it presents no hardship, the HR Manager may decide to leave the position open. It will depend on the situation. In certain situations, such as mission-critical positions that cannot be filled with temporary help, it may be necessary to terminate again, only if medical opinion supports the premise that theres no reasonable expectation of return. If it goes to court, as in the case of Katz et al v Clarke, this medical evidence will be necessary. The HR Manager would also have to present records of all communication with the employee on leave.
Compassion may not be a legal requirement, but its certainly an ethical one. Dismissal is a final solution, a devastating one for someone who has already suffered.
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