Workplace Illness and Disability

Workplace illness can be quite complicated. There are many different issues involved and sometimes, these issues may require employers and employees to obtain advice for more than one source.

Workplace Illness and Disability – Not Work Related

The reality is that most people become ill at some point, thought the range of illnesses can vary significantly. For relatively short term illnesses, ranging from the flu to severe colds symptoms, there is no clear legislative requirement that an employer compensate an employee while he or she is away. Most employers have some kind of sick leave policy in place that allows for a certain number of days per year. In some cases, employers may require medical notes. Employees have some level of protection from dismissal under human rights legislation but this does not require that they be paid while on sick leave.

Employees who develop a more serious short to medium term illness can face different issues. If they are working for an employer that has a short and/or long term disability policy in place, they may be entitled to disability benefits. The terms of these policies can vary greatly. Some policies kick in quite quickly and others only after a lengthy illness. Some provide for coverage of full salary and others provide 80% or even as little as 50% of salary. It can often take some legal pressure to ensure that the employer and/or the insurer provide these disability benefit payments.

If the employer does not have a disability benefits program in place, employees who become ill can obtain Employment Insurance illness benefits for a limited period of time. These benefits have a monetary cap and are not nearly as generous as private disability plan benefits.

Employees who develop more serious illnesses that will require a longer term absence from work will also need to access one of these two forms of benefits. However, without private disability benefits, the Employment Insurance benefits will run out and the employee will then need to consider applying for CPP (Canada Pension Plan) disability benefits. If the employee is receiving private disability benefits, the benefits may change after a specific time period, usually two years. The definition of “disability” may also change at this point and that may lead to a legal dispute to ensure continuing coverage.

Regardless of the type of illness, whether short or long term, employees have a duty to keep their employers informed to the best of the their ability as to their estimated date of return to work.

Both employers and employees will often require legal advice in these situations including advice about what happens if the relationship is terminated, what steps the employer can or cannot take to replace the employee and how the employee can best protect his or her position while recuperating.

Workplace Illness and Disability – Work Related

Employees who are injured at the workplace or while working for their employer are generally covered the Workplace Safety And Insurance Act Disputes about coverage under this legislation, access to benefits, benefit amounts and other issues will often require specialized legal advice from someone who practises exclusively in this area. In most cases, we would be happy to provide referrals to other lawyers who specialize in this area.

We do assist both employees and employers in negotiating back to work arrangements following workplace accidents and in ensuring proper severance arrangements if the relationship is terminated. Injured employees in Ontario have the right to return to work after they recover so the damages can be significant if an employee dismisses and injured employee while he or she is off work recovering.