An employer is required by law to accommodate a person with a disability to the point of “undue hardship”. In simple terms this means they must do everything reasonably within their power to modify the disabled person’s job so that they are able to perform it or offer them modified or alternative work.
If your employer has not made such efforts, this is what’s referred to as a failure to accommodate. We encourage you to book a free consultation with one of our employment lawyers to find out what your rights are and what you can do to enforce them.
How our employment lawyers can support you
If your employer has not done everything reasonably within their power to modify your job to meet your medical needs, you may feel unsure of what to do next. Rest assured you are not alone. When you call the employment lawyers at Share Lawyers, you will speak with someone who knows employment law and knows what you are going through and can offer you the best possible advice to get you the compensation you deserve.
Why you should contact us:
- It’s free to talk to us
- There are no fees unless you win
- We specialize in employment law and can go through your options
- We make arrangements for a free consultation with one of our employment lawyers to see how we can fight back if your employer has not made these accommodations
- We're there to answer all of your questions
Failure to accommodate a disability
Every employee in Canada is protected against discrimination by their employer, based on specific enumerated grounds under Human Rights Legislation both at the Ontario Labour Relations Board and at the other labour relations boards across the country. One of those grounds is disability, and related absences from work due to disability. These human rights laws set the framework for your employment rights while on long term disability leave.
Do I get to choose between modified work and disability leave?
The short answer is no – while you are entitled to have your disability accommodated, your employer is the one who gets to fashion the accommodation according to your functional limitations. For instance, if your physical disability limits your ability to stand or walk, your employer is legally required to accommodate these restrictions unless doing so would cause your employer undue hardship (more on undue hardship below). Your employer may offer you an accommodated position that you can perform while seated, or if no modified work is available, you may be able to go on disability leave.
What constitutes “undue hardship”?
Again, your employer only has a duty to accommodate your disability up to the point of “undue hardship”. What constitutes “undue hardship” is contextual and may vary from case to case. Generally speaking, “undue hardship” is a way for the law to balance business needs against human rights. For instance, employers are not required to create new positions or provide “make-work” projects purely for the purpose of providing accommodated work to those who are, for example, managing mental health issues or other disabilities.
What happens to my position while I am on disability leave?
A disability leave is a form of accommodation for a disability. In most cases, this means that your employer cannot decide to terminate you on the basis that you have taken a disability leave.
My employer has terminated my employment while I am on disability leave. Have my human rights been violated?
Maybe, but not necessarily. Your employer may dismiss you while you are on an employee’s disability leave for reasons unrelated to the leave.
As well, your employer is not required to accommodate your disability leave forever. If you remain on disability for multiple years without any significant improvement to your condition and no foreseeable return to work in the future, your employment may become “frustrated” at law – this permits your employer to terminate your employment without cause.
Do I need to answer my employer’s requests for medical information?
This is a tricky question. Strictly speaking, your employer has no right to see any of your private medical information. That said, your employer may reasonably ask whether you are able to perform the essential functions of the job, and if not, to know your functional abilities and limitations to determine whether they can offer you modified work. If you refuse to provide appropriate medical information, your employer will probably not discipline you, but they may make decisions based on the information available, including a decision to put you on an unpaid leave of absence, or to dismiss you on the basis that your employment has become frustrated. We generally recommend a cautious approach in these types of scenarios.
Do I have to return to work if my LTD has been cut off?
Not necessarily. Your insurer may cut off your LTD benefits for any number of reasons, but this does not mean that you are well enough to work, and this does not mean your employer may rely on the insurer’s decision and force you back to work. We generally recommend that you follow your doctor’s advice.
Do I have to return to work if I am well enough?
Yes, you should. Again, disability leave is an accommodation. If you are no longer disabled from working, the accommodation is no longer justified. Failing to attend work when you are no longer disabled is, in theory, the same as failing to attend work under any other circumstances. Of course, you always have the right to resign from your employment, but you will not be entitled to any notice or severance if you do.
Disability Lawyers in Toronto, proudly serving clients in Ontario and across Canada
Are you looking for a disability lawyer to fight for your rights? Our law firm has unmatched experience in disability law and we don't let provincial borders stop us from helping you in your time of need. Your insurance company has a presence throughout Canada and it makes sense to hire a disability law firm that knows the ins and outs of disability law and has a national presence too. Your insurance company knows who we are and knows that we won’t back down.
Employment lawyer fees
We are different from other law firms dealing with employment law because we work on contingency and you do not have to pay any fees unless you win.* There are no upfront costs and there are no fees until we settle your case. Everything is results-driven, and we only get paid if you get paid. It is part of our Share Law Guarantee.
*certain exceptions apply and in cases where we are not able to offer a contingency fee retainer, we will discuss the other options with you.
How much time do I have?
Employment claims are subject to certain time limits. As soon as you have been terminated from your employment or feel that your rights as an employee have been ignored, we encourage you to contact the employment lawyers at Share Lawyers for legal advice and to discuss your case.
If your employers have failed to accommodate your disability and you are unsure if it this fair, we will review it and talk you through all of your options — free of charge. It’s important to be informed about the employment process and to know your rights.
No fees unless you win your case
We understand your situation and that paying for an employment lawyer may feel out of reach. We are here to help you. That is why we offer a free consultation, why there are no upfront costs to you, and why there are no fees unless you win your case. You’re not alone. We believe in your case, which is why we only get paid when you do.
When you work with us, you get guidance and tools to help you along the way. You will become a member of a privileged group of clients that have access to our hub, called Life reBUILDER™, exclusively from Share Lawyers. It offers six unique services to help rebuild your life and get you back on track, beginning with the expertise of a full legal team all working for you.