What Happens if an Employer Terminates Employment Due to a Disability Leave?
Can employees be fired while on disability leave? In general, Ontario employment law prohibits employers from firing an employee simply because the employee is on a disability leave. In other words, while an employer is generally free to terminate an employee’s job for any reason (or no reason at all), they have to follow at least two conditions:
- the employer’s decision is not related in any way to the employee’s disability leave (or medical issues);
- the employer’s decision is not in unlawful retaliation (reprisal); and
- the employer provides the employee with an adequate financial severance package.
Unfortunately, some employers are unaware of their legal obligations (or sometimes reckless disregard their obligations) to employees under Ontario employment law. As a result, if an employee faces a termination of employment somehow connected to a disability leave they employee decided (or was required) to take, the employee may be able to pursue the employer for, among other things:
- wrongful dismissal claim
- human rights (discrimination) complaint
- bad faith damages
- punitive damages
However, an employer’s obligation not to discriminate against an employee by firing them for taking a disability leave does not mean an employee on sick leave is immune from termination of employment. In fact, if an employer’s decision to fire an employee on a disability leave (or, similarly, maternity leave) has absolutely nothing to do with the employee’s medical condition or disability, the employer is generally permitted to do so – as long as the employer provides the employee with prior reasonable notice of termination (financial severance package) to avoid a wrongful termination claim.
Options for Employees for Disability Leave
Under the Ontario Employment Standards Act, 2000 employees in Ontario who require time away from work due to personal illness, injury or medical emergency generally have a legal right to take up to 3 days of unpaid job-protected leave (this is called a “sick leave”). The term “job-protected” simply means the employer is not allowed to fire the employee for taking their sick leave; in fact, the employee has the right to return to their job.
However, sometimes an employee’s medical leave extends beyond the statutory 3-day sick leave, while at other times, an employee cannot afford to not be paid while on sick leave? What are the employee’s options?
As a minimum entitlement, employee’s may be able to apply for Employment Insurance (EI) sickness benefits, which can provide employees with up to 15 weeks of financial assistance if they are unable to work for medical reasons. This generally covers receive 55% of the employee’s regular weekly earnings (up to a maximum of $638 per week). To qualify for EI sickness benefits, employees must get a medical certificate to show that they are unable to work for medical reasons (e.g., illness, injury, quarantine or any medical condition that prevents the employee from working).
Disability Insurance Coverage
As part of their jobs, many employees have health benefits coverage that provides them with some compensation (salary) if they ever need to take an extended disability leave of absence from. This is often called “disability insurance coverage,” and usually includes “short-term disability” and “long-term disability.” For example, in cases where an employee’s medical condition will require them to take many months off work, employees choose may choose take a disability leave by accessing their long-term disability benefits their group disability insurance plan offered by their employer.
If your employer decides to terminate your employment while you away from work on long-term disability under your doctor’s guidance, and you genuinely believe your termination had something to do with your medical condition, it could be considered a wrongful termination under Ontario employment law, as well as a human rights violation.
Lost Job Due to Medical Condition or Disability Leave
Occasionally, employers try to fire an employee by terminating their employment in one of the following scenarios:
- the employee requests accommodation for a medical condition (which the employer does not want to provide, usually because it is expensive);
- the employee has been on a long-term disability leave of absence for a long time;
- the disability insurance company denies the employee’s claim for long-term disability benefits;
- the disability insurance company suddenly decides to cut off an employee’s long-term disability claim, arguing that they employee’s condition has “improved” enough for them to return to work.
Whatever the reason, an employer does not have a legal right to terminate your employment for reasons even slightly connected to a medical condition or disability leave. Similarly, employers are generally not permitted to terminate an employee’s job by relying only on a disability insurance company’s opinion that the employee is well enough to return to work (i.e., that the employee is no longer “disabled”). Why?
Because the employer’s obligation to an employee is governed by an employment contract, while is entirely separate from a disability insurance company’s obligations to the employee in a disability contract policy. Therefore, this means that an employer’s decision to end the employment relationship requires it to follow its own legal requirements, including providing them employee with a severance package and ensure it has not acted in discrimination against the employee.
Discrimination
As discussed above, employers cannot fire an employee for reasons related to their disability leave or medical condition. In other words, employers cannot fire an employee while on disability leave simply for that reason alone. This is because human rights law, such as the Ontario Human Rights Code, requires employees to accommodate medical conditions by providing employees with support necessary to allow the employee to do their job to the best of their ability, while also providing them with an opportunity to recover their health. This is called an employer’s “duty to accommodate.” And if employers fail to follow their duty to accommodate, employees may be able to pursue the employer for discrimination, as well as a claim of reprisal if an employer terminates their job, or otherwise disciplines an employee due to medical conditions.
Contact Bune Law, Toronto Employment Lawyer
If you are a non-unionized employee and your employer has fired you from your job, or is threatening to let you go while you are away from work on a long-term disability claim, contact our employment lawyer immediately to determine your options. By reviewing your case with an experienced employment lawyer, you will find out if you have a valid case of wrongful dismissal or discrimination, and if so, obtain your severance package, as well as compensation for human rights damages. Our respected employment lawyer at Bune Law in Toronto can help explain your legal rights, pursue your options, and get you what you are owed.
At Bune Law, an experienced employment lawyer in Toronto will provide you with expert legal advice on a wide variety of employment matters, including what steps to take to properly manage workplace or HR issues, such as wrongful termination claims. The experienced employment lawyer at Bune Law takes pride in a reputation for excellence in client service. Call 647-822-5492 for an employment lawyer consultation.
If you are an employer, you should speak with an employment lawyer to discuss your options before firing an employee to obtain the proper severance package documentation for your employee to avoid a discrimination claim.
If you are an employer attempting to terminate the job of one of your employees who happens to be in a disability leave or sick leave, Bune Law, employment lawyer in Toronto, will help you understand the delicate issues involved and properly proceed with employment termination. In doing so, you will minimize the risk of wrongful dismissal claims or discrimination complaints by an employee who feels they were treated unfairly with their wrongful termination. Similarly, if if you are an employer facing a wrongful dismissal claim, our experienced employment lawyer can also assist in defending your business interests as an employer cost-effectively.
No matter which side you happen to land on, Bune Law, a leading employment lawyer in Toronto, is ready to assist with your case. Don’t hesitate to reach out to Bune Law at 647-822-5492.
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