Termination While on a Disability Leave

The legal interaction between disability leave and termination of employment can be complicated, and highly context specific. Here are general answers to some of the most common questions we get from employees who have been terminated while on disability leave:

Can my employer dismiss me while I am on a disability leave?

Yes – contrary to popular belief, employees on a disability leave may have their employment terminated, so long as the employer’s reasons for doing so are completely unrelated to the disability leave. For instance, employees are not protected against having their jobs eliminated by a restructuring while on a disability leave of absence.

What termination entitlements should employees on a disability leave receive?

Being on a disability leave, on its own, does not change your termination entitlements – you are entitled to notice of termination, or pay in lieu of notice. Employees on a disability leave almost always receive just pay in lieu of notice, since time on a disability leave cannot be counted towards notice of termination.

What if my disability leave influenced my employer’s decision to terminate me?

Your employer has a duty to accommodate your disability leave up to the point of undue hardship. Failing to do so is a violation of your human rights. You can pursue your employer for additional human rights damages in a wrongful dismissal claim – you may even seek to have your employment reinstated (although this is an extraordinarily rare remedy, unless you are represented by a union).

How does my termination affect my continued receipt of disability benefits?

Usually, the termination of your employment should not impact your ongoing receipt of disability benefits – though your coverage under the plan may cease.

What does it mean if my employer says my employment has been frustrated?

Employment relationships become “frustrated” at law when they become impossible to perform. Frustration is a no-fault termination of employment; it means your employer can end your employment without providing some of the notice (or pay in lieu of notice) that would typically be required.

Your employment might become frustrated if you have been disabled from work for a lengthy period with no reasonably foreseeable return to work. In the disability context, frustration of employment typically starts becoming a possibility after about 2 years of absence due to disability, with no foreseeable return. That said, if your doctor believes that a return is possible, your employment may survive for much longer – in some cases, for as long as a 5-year absence.

How does frustration affect my termination entitlements?

If your employment has become frustrated due to a disability, you are still entitled to your minimum notice and severance entitlements under employment standards legislation. You are not, however, entitled to “reasonable notice” of your termination at common law.

How can I contest my employer’s decision to terminate me?

Employers will often look for an excuse to terminate employees who are on disability leave, whether by “eliminating” your position; prematurely claiming that your employment has been frustrated; or dredging up issues to artificially justify your discriminatory termination. You can contest your employer’s decision by bringing legal proceedings – typically, by suing your employer for wrongful dismissal. An employment lawyer can advise you on your rights and represent you through that process.

Do I have a duty to look for other work?

In most cases, if you wish to sue your employer for wrongful dismissal, you have a “duty to mitigate” your damages by looking for other reasonably similar jobs in your area. However, you only have a duty to mitigate if you are capable of gainful employment. That means that if you are disabled from working in a comparable job, you do not have a duty to mitigate your damages for wrongful dismissal by looking for other work.

Denied your long term disability claim?

Contact Share Lawyers today and put our experience to work for you. Our 35+ years of experience can help you win your case against Canada Life, Desjardins, Manulife, RBC Insurance, Sun Life, and other insurance companies. We offer free consultations and there are no fees unless you win your case. Join us on Facebook and become a Top Fan for a chance to win each month.

_________

A note from our long term disability lawyers

Taking a medical leave from work is not an easy decision to make. Concerns about providing for yourself and your family and keeping your job may cause you to want to push through your pain, but this won’t make your problems go away. Stopping work is often the smartest decision for your long term health and well-being, and your disability benefits are there to provide you with financial support until you can return to work.

If you have made the tough decision to stop working and apply for your short term disability or long term disability benefits, you may feel overwhelmed by the process and have questions that your employer and your insurance company are not able or willing to answer. Share is There to see you through and answer your questions.

Our Disability law firm knows what you have been going through

We understand that things have not been easy for you over the last little while. Your health has been suffering, you are unable to work, and now your insurance company, who was supposed to be there in your time of need, has decided they will not pay your disability benefits or respect your disability claim. These benefits exist to provide you with the financial support you need so that you can focus on your health and rebuilding your life. It is unfortunate that your insurance company has not lived up to its promise. If your disability claim has been denied, we will fight to get you the benefits you are entitled to. Our disability lawyers have helped thousands of Canadians get their long term disability benefits over the past 35 years, and we can help you too.

Our experienced disability lawyers can fight back on your behalf

Share Lawyers believes that every client who is dealing with a disability claim deserves superior personal service. To achieve that goal, we have developed our team of experienced, compassionate, and caring long term disability lawyers, law clerks, and administrative staff to meet all of your needs. Our team of experienced long term disability, life insurance, employment, and critical illness insurance lawyers have made successful claims against many insurance companies, third-party administrators and employers.

If you are unable to work, your disability benefits should be there to provide you with the financial support you need. While your insurance company may be focused on finding ways to avoid paying your claim, our focus is on what is in your best interest. When Share Lawyers gets involved, you have an entire team of lawyers that are there to support you and to fight for what is yours.

Our disability claim lawyers fight for your disability insurance claim by relying on our many years of experience to apply the best strategic planning and approach in each case, using the latest technology available. Experience matters, and with Share Lawyers, you are in the best hands with 35 years of success on your side.

In this video, we explain the role of a long term disability lawyer and how we can support you when you have been denied your long term disability benefits.