It’s a legitimate concern for many Ontarians who are disabled at work – will their need to go on long-term disability cause them to lose their jobs?
If you’ve recently been let go while on disability or are about to apply for LTD benefits and want to know what protections you have, consult with disability and employment law experts who practice in both fields. They can tell you how a long-term disability claim can affect your employment rights, or the other way around, and how you can protect both.
So, Can I Lose My Job if I go on Long-Term Disability?
Yes, you can lose your job if you go on disability, but you can’t lose your job because of your disability or because you applied for LTD benefits. If your disability had even the slightest effect on your employer’s decision to terminate you, that would amount to discrimination on a prohibited ground under human rights legislation and entitle you to seek damages. If you are terminated after you apply for LTD benefits, speak to an employment lawyer right away.
Otherwise, employers are allowed to terminate an employment contract at any time without cause, including someone on long-term disability. However, if you were receiving LTD benefits before the termination, you are still entitled to them as long as you continue to be eligible for the LTD program in accordance with the insurance policy.
If you are terminated without cause, you are also entitled to reasonable notice, pay in lieu of notice or an amount agreed upon in the employment contract. Always consult an employment lawyer before accepting a severance package. What you’re entitled to is not just a mathematical calculation as most people believe. Being in poor health can increase your entitlement. On the other hand, your severance can impact your LTD benefits.
Can I Still Apply for LTD After I’ve Been Terminated?
If your disability started while still employed and actively working, you might be eligible for LTD benefits. You are still entitled to benefits during the notice period after your termination, but if you are not “actively working,” you may not be entitled to long-term disability benefits. You have to consult the insurance policy’s rules on long-term disability eligibility.
Termination of an Employee on LTD Due to Frustration of Contract
If an employee has been on long-term disability for a considerable amount of time and a physician doesn’t expect the employee to return to work in the forseeable future, an employer can seek to terminate the employee on the grounds that the employment contract has been “frustrated” – unable to be completed through no fault of either party.
But there is a heavy onus on the employer to show that they tried to accommodate the employee’s return. This includes making opportunities for the disabled employee to return, if possible, even by offering the employee a new role.
Another potential accommodation that may be reasonable in the circumstances is to leave the position open. However, with business-critical positions that can’t be filled with temporary staff, an employer may seek to terminate if the employee’s diagnosis is that there’s no reasonable expectation of return in the forseeable future.
Termination for Cause of an Employee on Long-term Disability
Termination for cause is only used for the most extreme situations because the consequences of it are severe and can include:
- Losing the ability to apply for Employment Insurance (EI)
- The employer denying severance.
- Difficulty finding work.
The law creates a very high standard for proving that a termination for cause was justified, given the impact it can have on someone’s future. The employer has to show that the employee’s behaviour had happened on several occasions and the employee had been warned or it was so extreme that it caused irreparable damage in the employment relationship.
Examples of behaviour that can justify dismissal for cause include an employee:
- misrepresenting their background, skills or qualifications at the hiring stage.
- Driving a company vehicle or operating company machinery while intoxicated.
- Fighting with fellow employees.
- Sexually harassing a co-worker.
- Threatening violence.
- Willfully disobeying a reasonable order.
- Stealing or committing fraud.
Given the difficulty of proving just cause termination, the employer would need compelling evidence that the employee on LTD engaged in behaviour that rose to the standard of a just cause termination before considering it.
The bottom line is, contact an employment lawyer whether you were terminated for cause, terminated without cause or terminated while applying for, or receiving, long-term disability benefits to ensure your rights are protected.
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