Frustration of Contract and Long Term Disability Benefits

| November 2nd, 2017 | No Comments »

Employers should be familiar with the concept of frustrated contracts in employment law. Frustration considers what the parties (employer and employee) could reasonably contemplate at the time the employment agreement was made. Put simply, when an event occurs that prevents a worker from performing the essentials of their job, then the contract may become frustrated since this was unforeseen at the time the employment contract was agreed upon.  If so, the employment relation can end with no severance owed to the employee.

When an employer offers long term disability benefits (LTD), this may create a situation where the employer should have seen the possibility of a disability preventing an employee from working at some point in the future. This is because the employer could have reasonably contemplated this as a possibility when employment offers or subsequent entitlement contain LTD benefits. Essentially, LTD benefits offered by an employer will create a situation where an employer will find it more difficult to argue an employment contract has ben frustrated, which was the case in Antonacci v. Great Atlantic & Pacific Co. of Canada.

 In this case, the court stated that the provision of LTD benefits shows that the employer was able to contemplate the possibility of a lengthy leave of absence during the course of employment. In particular, the employee here was a long term worker that eventually had to take an extended leave. The fact that the employee had been with the employer for a long period of time and the provision of LTD benefits made the employer’s argument of frustration harder to prove.

When faced with an employee on an extended leave it is necessary to take a holistic analysis of each fact. Proving frustration is a high burden, and having an employee on a long term leave lasting 2 or more years does not necessarily frustrate the employment contract. It is advisable to seek the advice of an employment lawyer when faced with such a situation.

Can You Collect Employment Insurance (EI) if Fired?

| June 27th, 2017 | No Comments »

The general rule for Employment Insurance eligibility is having lost employment for no fault of your own. If an employee is fired, there may be a chance that EI eligibility has been forfeited. When an employer dismisses an employee for misconduct, then this would disqualify an individual from being eligible for EI in Ontario. However, misconduct is often difficult to establish so as an employee, it is important not to assume ineligibility before attempting to apply.

Misconduct can include an inappropriate action that was deliberate and violated a term of employment. If termination resulted after only one act, then it had to have been misconduct that was very serious and incompatible with the conditions of employment. Otherwise, termination resulting from misconduct should have proceeded progressive disciplinary action – such as a warning, meeting and so forth.

It is important to gather any facts possible about the firing. Upon applying for EI after termination, a government agent will contact the employer to gain details regarding the reasons for the termination in relation to the misconduct. The employer will be required to justify why the misconduct warranted termination, which includes evidence of breach of contract, policy, or essential employment condition.

Once the investigation with the employer concludes, the employee will have an opportunity to accept or deny the reason(s) given for the dismissal, give his/her own version of events, and provide any witnesses if possible. The assigned agent will render a decision once considering both versions, each of which is given equal weight.

Overall, when being dismissed for misconduct, it is important to enquire and gather any information possible as to the reason for the firing. When in doubt, it is always best to apply for EI and allow the investigative process to determine whether EI eligibility will be granted.

Accommodating Mental Illness in the Workplace

| August 23rd, 2016 | No Comments »

Accommodating mental illnessAccommodating mental illness is an extremely complex area for employers to navigate.  Unlike physical disabilities, the need for a mental health accommodation is often difficult to detect, and the employee’s medical prognosis can often be less predictable than a physical disability.   An employee may also be reluctant to ask for accommodation due to fear of stigma associated with mental illness.  However, employees are legally protected against discrimination or harassment on account of a disability, including a mental health disability.  In fact, employers have a legal duty to accommodate mental illness in the workplace.

When does Mental Illness Trigger a Duty to Accommodate?

Some mental health problems do not rise to the level of a recognized disability under human rights legislation.  For instance, a generalized complaint of ‘stress’ in the workplace, does not on its own amount to a disability.  There must be at least a diagnosis of some recognized mental disability, or clinically-significant symptoms, as identified from a health professional.  Examples of recognized mental health disabilities include generalized anxiety disorder, depression, alcohol addiction, or drug addiction. This is by no means an exhaustive list.

A diagnosis of a mental illness does not automatically trigger a duty to accommodate.  Many mental illnesses may be successfully managed or treated without the need for a workplace accommodation.  The duty to accommodate a mental illness is only triggered if there are work-related needs arising from the disability.

How is an Employer Required to Accommodate Mental Illness?

Accommodating mental illness can take a variety of different forms, such as a reduced work schedule, a leave of absence, or modified work duties.  Accommodations are meant to enable the employee to meaningfully participate and integrate into the workplace.  There is no single solution for accommodating mental illness.  Each case requires an individual assessment of the worker’s job requirements, their medical restrictions and needs.

Who gets to decide on the Accommodation?

The employer is not required to implement the employee’s preferred or ideal accommodation.  The obligation is only to implement a reasonable accommodation, considering the employer’s business operations and the employee’s medical restrictions as described by objective medical documentation. Even though the employee’s preferences are not decisive, accommodation is a two way street and should generally involve a dialogue with the employee, and the employer should take the employee’s input into consideration.

What if it is Not Feasible to Accommodate the Employee’s Disability?

The employer has a legal duty to accommodate to the point of “undue hardship”.  Accommodation often entails some inconvenience, cost or disruption to an employer, and these concerns are not necessarily an adequate justification against accommodation.   Speculative or anecdotal concerns about cost, health and safety or employee morale are not adequate excuses for refusing to accommodate mental illness. Concrete and objective evidence of undue hardship must be provided.   According to the Ontario Human Rights Commission, the cost standard should be a high one and in order to prove undue hardship, an employer should prove that costs are “so substantial that they would alter the essential nature of the enterprise or affect its viability.”

What are the Employee’s Responsibilities?

An employee seeking a mental health accommodation has a duty to cooperate in the accommodation process. This means that the employee should notify their employer of the disability and their accommodation needs, to the extent possible.   This includes sharing necessary medical information for the purposes of implementing an accommodation.

In many cases, the mental health disability itself my impact the employee’s decision-making, their ability to disclose, seek treatment or cooperate in the accommodation process.  When an employee is unable or refuses to disclose their accommodation needs, this makes implementing an accommodation particularly challenging for an employer.  In some instances, if the employee is able to reasonably communicate their accommodation needs but refuses to, the employer may not be required to accommodate the employee.

However, if an employer reasonably suspects that an employee may be suffering from mental illness and may need accommodation, the employer has a legal duty to inquire and assess the need for a possible workplace accommodation.   It is not a sufficient defence that the employer was unaware of the employee’s accommodation needs, when the employer ought reasonably to have known that the employee has a disability.

Can an Employer Ask for Objective Medical Information?

There is a fine balance between protecting an employee’s right to privacy of their medical information and the employer’s right to know the employee’s medical needs.  An employer is entitled to ask for objective medical documentation confirming the worker’s medical restrictions and the expected duration of the medical restrictions.  A one-liner handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness, and the employer may be entitled to more specific information pertaining to the employee’s health condition.  However, the worker is not required to disclose detailed diagnosis or treatment information if that information is not necessary for the purposes of implementing an accommodation.

The employer is required to keep medical information confidential, and keep it on a needs to know basis for the purposes of handling an accommodation.  For instance, information pertaining to medical restrictions may need to be shared among certain human resources personnel and the employee’s supervisor(s), who may be required to implement the workplace accommodation.

 

Author: Jonquille Pak, Whitten & Lublin

Your Legal Rights in Disability Insurance Disputes

| June 9th, 2016 | No Comments »

disabilityAn employee who becomes disabled, or otherwise becomes incapable of performing the essential functions of their job, and may be entitled to income replacement through the employer’s short-term and long-term disability insurance policies.  The process is not always straightforward, making it important for both employees and employers to understand their rights:

For Employees

Employees have a basic right to dignity and fair treatment in having their disability insurance claims assessed.  While medical evidence will be required to substantiate a claim for disability insurance coverage, the employee will not be subject to the whim of the insurer’s medical team.

Similarly, the employee has the right to have their claim fairly treated, and on the presumption that their claim is legitimate.  An employer or provider that treats an employee with suspicion about the validity of the claim may find itself in hot water if the claim is rejected.

It is common to see an employee’s disability insurance coverage terminated before they are fit to return to work.  An employee may also find their initial application rejected, despite not being able to perform their duties.  Employees are entitled to challenge unfair or unsupported determinations about their coverage, which means that the employee should promptly retain legal counsel if this situation arises.

The result of this right is that the employee is entitled to retain their employment with the employer while receiving disability insurance benefits.  This right, however, is not absolute.

For Employers

In very limited circumstances, the employer may have the right to dismiss a disabled employee, where it appears that the employee will be unlikely to perform the essential functions of their job for the foreseeable future.  An employer should never dismiss a disabled employee without first obtaining sound legal advice.  Disability is a protected ground under both federal and provincial human rights legislation, which means that dismissing a disabled employee may constitute discrimination.

Employers also have the right to be appraised of the status of the employee’s insurance claim.  If disability insurance coverage is rejected or discontinued, the employer may be at liberty to require the employee to return to work, or to dismiss that employee.  These steps should not be taken without legal advice, as termination of disability insurance coverage does not circumvent an employer’s obligations under human rights legislation.

 

Author: Marc Kitay, Whitten & Lublin

Things a Leave of Absence Policy Must Include

| May 16th, 2016 | No Comments »

Leave Of AbsenceLeave of absence policies are meant to provide employees with work-life balance and in certain circumstances, to give employees needed time away from work in urgent or compelling circumstances.  Some employers may also grants leaves for educational or career development.

Certain types of leaves may be at the discretion of the employer, and managers may balance operational needs against an individual’s leave request.   Other types of leaves, however, are non-discretionary, and an employee has a legal right to take the time off of work.  It is fundamental to any leave of absence policy to distinguish between those types of leaves that are discretionary and those that are not.

Job-Protected Leaves

Certain leaves of absence are compulsory under applicable employment standards legislation.   In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out various categories of job-protected leaves, which include the following:

  • Pregnancy leave
  • Parental leave
  • Personal emergency leave
  • Family caregiver leave
  • Family medical leave
  • Critically ill child care
  • Organ donor leave
  • Reservist leave
  • Crime-related child death or disappearance leave in circumstances where a child has died or gone missing as a result of crime

Additionally, under the Ontario Juries Act, an employee who is summoned to attend court as a juror, is entitled to an unpaid leave.

The purposes of the leaves, their length and their eligibility criteria vary. However, all of these leaves are non-discretionary, meaning that if the employee in question is entitled to take the leave, the employer must grant it.

Some employers may choose to pay an employee for all or part of a mandatory leave or provide top-up benefits to supplement employment insurance income, but this is not mandatory.

Under the ESA, employers are required to continue making contributions to the employee’s group benefit plans. This includes ongoing contributions to pension, life and extended health insurance, accidental death and dental plans, if applicable.  Furthermore, employees must allow the employee to continue accrue service and seniority during the leave period.

Most importantly, employees are entitled to be reinstated to their employment following a compulsory leave.  If the employee’s job has been eliminated, the employer is required to reinstate the employee to a comparable position.

Vacation

Provincial employment standards legislation also sets out minimum requirements governing vacation leaves.  In Ontario, employers are require to provide employee with at least two weeks of vacation leave and vacation pay in the amount of 4% of gross wages.

Employers must provide the vacation time, even if an employee does not ask to take it.  Vacation time may be waived only if an employee provides their written agreement to forego vacation and the agreement is approved by the Ministry of Labour.  The employer is still required to process the employee’s vacation pay, regardless of whether the vacation time has been properly waived.

If the employee’s earnings fluctuate over the course of the year, for example, the employee may earn commissions, incentive pay, overtime, in addition to base salary, employers must ensure that when calculating vacation pay owed, that the employee receives a minimum of 4% vacation pay on total gross wages, including variable compensation.

Leaves Related to Disability and Family Caregiving

Separate from the above, employers have a general duty under human rights legislation to accommodate an unpaid leave of absence in the case of an employee who is unable to work because of a disability.  Similarly, employers have an obligation to accommodate time off for an employee is unable to work on account of family caregiving responsibilities. There is no specific time limit to these types of leaves.  The length of the leave depends on the nature of the individual’s needs.   It is important that any leave policy allow the employer flexibility in granting additional time off where needed in these situations.

Consistency

Generally, a leave policy should be applied fairly and consistently across the workforce.  A protocol should be in place for managers to assess leave requests and identify when a leave is compulsory and when it is within their discretion to approve the time off.

Author: Jonquille Pak, Whitten & Lublin