What brings more fear into the hearts of Employers, Human Resource Managers and yes even Lawyers, than terminating an employee who is on disability?
I am sure I come across this question weekly and I suggest they contact a HR Specialist or an HR Lawyer. I have attended several of the meetings between employer and HR Specialist/Lawyer and I still find the answers vague. I know that the employer just wants to remove the employee and the how to is never very clear. I was trying to put together a letter for both the employer and the employee which outlines each of their responsibilities at time of an employee’s disability; but I couldn’t find either an HR Specialist or Lawyer that was willing to assist me with the letters, so I am still looking.
One thing I have derived from the meetings I have attended, is an employee who goes out on a disability has a requirement to stay in contact with the employer. Ensuring they know how to reach the employee and are updated on the status of the claim. Please note it is the status of the claim NOT what the disability is.
I encourage you to read the entire article from Benefits Canada, called “B.C. ruling to add further clarity to the long term disability saga“; below are a couple areas that I thought were important. The article talks about both Union and Non-Union, however, the Union will be directed by their Bargaining Agreement and the non-union should invest in an Employee Booklet which outlines this and several other areas pertinent to their employment.
“Generally, and subject to applicable statutory entitlements respecting termination pay and severance, it is permissible to terminate an employee who’s unable to work due to disability, either on account of innocent absenteeism (in the case of unionized employees) or frustration of contract (in situations involving non-unionized workers).”
“As for other benefits, such as extended health and dental plans, the prevailing view is that they don’t vest at the point an employee becomes disabled and that continued coverage doesn’t impede an employer’s ability to terminate employment. The British Columbia Labour Relations Board confirmed that view in its July 2017 decision in Langley (Township) v. Canadian Union of Public Employees, Local 403.”
“The board, relying on undisputed evidence that the township had moved forward with the terminations based on the length of time the terminated employees had been away from work, set aside an earlier decision that had ordered reinstatement and continued group benefits coverage. In support of its decision, the board cited other cases that held that there’s no general right to receive non-disability benefits simply because an employee is on long-term disability and that, in the absence of specific contractual language to oust that rule, entitlement to such coverage depends on the ability to fulfil the bargain of work for pay.”
Please ensure before terminating a disabled employee that you contact an Human Resources Specialist or a Lawyer who specializes in Human Resources. This way you can have everything in order and if a termination is recommended, it is done correctly.
Glendinning Insurance Services, your Resource Specialist.