home Legal Topics Statutes, etc.

Workers with Disabilities: A brief outline of some legal considerations.

This article is several years old.
The author no longer practices in this area and does not give advice on this subject.


Produced in conjunction with the Public Forum on Breast Cancer and Prostate Cancer presented by Windsor Regional Cancer Centre and the Windsor Star

May 1, 1996

by Kenneth W. Golish

See disclaimer and copyright information

THE EMPLOYEE BECOMES ILL

Persons who become ill because of cancer or for any other reason may need to know about their continued ability to keep their jobs or otherwise supplement their income.

Cancer of any kind may effect people in different ways. The same illness may require one person to quit a job immediately, while another may continue work with no interruption. Each circumstance is different.

What about a person's employment situation when he or she becomes ill? To a large extent the answer depends on whether the illness is one of long or short duration involving treatment or other incapacity. It may also depend on whether the worker is covered by the provisions of a collective agreement.

Sources of law that govern this area are the common law of wrongful dismissal and the more recent human rights legislation, both provincial and federal. 2

The common law continues to this day in the development of wrongful dismissal law. The common law is that law which has for centuries been made on a case-by-case basis. Principles have evolved in this manner in every area of law, both where a statute requires interpretation and where there is no statute at all.

In Ontario, the law of wrongful dismissal is almost entirely a creature of the common law. An employment contract is a contract much like any other: If one party breaks the agreement in a significant way, the other may have a claim to damages, a right to terminate the agreement or both. The employer breaches the contract of employment when a worker is dismissed without cause. Just cause usually involves some misconduct on the part of the employee although misconduct does not necessarily have to be wilful.

Most employment contracts do not have set terms. Some may be for a given number of years, others are considered at-will. An employee can always be fired for cause and the employer will not have to pay damages. If the employee is fired without cause, the employer will be liable to compensate the worker. Where there is a collective agreement, the employee's option is to file a grievance and the collective agreement governs. Otherwise the employee will claim damages, if necessary, in court.

In the case of employment-at-will, 3 damages are based on what a court would determine to be the proper notice period. Such a period can be as short as one week or as long as two years or more. The length of the notice period will vary depending on such factors as the years of service, the kind of position, the age of the employee, the availability of other employment and the worker's employment history.

There is significant body of cases dealing with the circumstance of an employee who becomes ill. Each case arose because an employee was fired when he or she became ill or incapacitated. Those cases tell us that for the short term, a person would normally be permitted time off if time off is necessary for medical reasons. Although minor afflictions do not qualify as an excuse for absenteeism, an individual cannot be fired for being ill. That even applies if the individual has a history of absenteeism. Whether an employer has to pay short-term sickness benefits depends on the policy of the employer or the provisions of the collective agreement that governs.

That is the short-term situation. The long term situation is equally clear. If an individual becomes permanently disabled, the contract is considered frustrated. Frustration is a separate legal principle, but in employment matters, it operates so as end the employer's obligations under the agreement.

The hard cases of course arise when permanency of the employee's ability to work is unclear. Can the employer find somebody else to do the job and fire the sick worker? Well, that all depends. The cases seem to suggest that until it is clear the worker is permanently disabled, there is no frustration of contract and no right to fire a worker without the appropriate notice.

Today we would also look to what the applicable human rights legislation says. In the event that there is a conflict between an employment contract, (including a collective agreement), and the legislation, the legislation prevails.

Persons who become ill may be classified as disabled. The Ontario Human Rights Code gives this definition:

A person who is disabled may not be discriminated against in matters of contract, housing, public services and employment. If you are disabled you are entitled to have your disability accommodated, unless to do so would cause undue hardship to the party responsible.

The Ontario Human Rights Code says this about accommodating an individual with a disability:

Accommodating an individual with a disability may require providing equipment or resources that would allow that person to commence or continue work. It may also involve allowing that person time off work, providing part-time employment or changing the individual's work duties.

Obviously there are situations where it would be unfair to expect a business to provide accommodation to a person with a disability. If it will cause undue hardship, then it is not necessary. It is clear however that mere inconvenience is not an excuse for avoiding the duty to accommodate. The basic considerations involved in the test of whether there is undue hardship require determining the costs of the accommodation if that is subject to assessment, the availability of funding for the project and whether the health and safety of the worker, others or the public at large is at risk.

The ability of provider to be flexible is an important factor in this analysis. The size and viability of the organization will be key considerations. An employee who becomes ill may need time off, lighter duties, part-time work or the assurance that the job will remain their's for a given or indefinite period. Whether such an accommodation can be made may involve consideration of the nature of the position. If the employee is the only employee of the business, one of the few employees or a key employee, consideration must be given to the ability of the organization to hire a replacement on a temporary basis. Where the employee is one of several or many in a pool, there may be no reason for the employer not to hold the job of the employee.

An employee and employer may end up having some dispute about what kind of accommodation is appropriate. In the first place, in many instances, it is for the employee to bring up the issue of accommodation.4 There must be a starting point to resolving exactly what kind of accommodation will suffice. Of course, the employee's demands are not necessarily what will govern. If the employer makes a more reasonable proposal regarding accommodation, it will prevail. However, in the analysis, consideration needs to be given to issues relating to the individual dignity and privacy.

OTHER BENEFITS - SOURCES OF INCOME REPLACEMENT

The Government of Canada has two basic programs available for persons with disabilities. The first is unemployment insurance. Subject to certain restrictions, a person unable to work may be entitled to up to 15 weeks of benefits. The individual must have had 20 weeks of work eligibility to apply and not have exhausted the right to receive regular benefits. For instance, a person who becomes ill while collecting regular benefits and has less than 15 weeks available, is only entitled to receive benefits for the lesser period. On the other hand, a person may be entitled to receive regular benefits if he or she is able to work but was dismissed only because his or employer was unable or unwilling to provide the appropriate accommodation.

The second program is through the Canada Pension Plan. Benefits are available after four months for those who cannot do any kind of work to which they are reasonably suited. The amount of the benefit will vary depending on the individual's history of contributions to the Plan and the number of dependants the individual has.

Provincial family benefits may also be available.

The insurance industry is another source of income replacement. Employers often have disability plans available as a benefit. As well, employed and self-employed persons may purchase such insurance as part of a group or individually. The availability of coverage is in part dependant on income and the benefits may vary from one policy to another, but coverage often may continue as long as the individual cannot do his or her own job, even if the worker is capable of doing other work. Benefits may or may not be taxable.

Notes

1

Of the Bars of Ontario, New York and the District of Columbia. This summary is intended for general information only and not as legal advice. Persons having specific questions regarding individual problems should seek independent legal advice, representation or both. Article copyright 1996 Kenneth W. Golish. Article may be reproduced for non-commercial purposes provided it is produced in its entirety including this copyright acknowledgment. Other rights reserved. See also Use of Site--Return--

2

Provincial employment standards provide minimum notice periods depending on length of employment. These are minimum periods and an employee dismissed without cause may be entitled to a longer notice period based on the circumstances of the individual case. An employee is not entitled to notice if the employee is guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer. This is a different test than the one applicable in wrongful dismissal cases where mere "just cause" applies. Thus a person may be entitled to notice according to the statutory minimum standard, but not to a longer period under the common law.--Return--

3

In the case of a fixed-term, an employer who dismisses an employee without cause may be liable to damages for the duration of the term. However this might be effected by the employee finding other work or having other work readily available.--Return--

4

An employee making a request for accommodation does not have to disclose private or confidential matters. For instance, the Ontario Human Rights Commission's own guidelines suggest that an individual who requires a flexible schedule in order to attend for daily psychiatric treatment does not have to reveal the nature of the appointments as long as acceptable evidence such as a medical certificate is available. A medical certificate only needs to verify the need without going into detail. Alternatively, a detailed certificate may go to the company's health department rather than to the worker's supervisor. --Return--

Law office of Kenneth W. Golish

Law office of Kenneth W. Golish.

Golishlawofficepage