Can my Employer Fire me Because of my Disability?

 Posted by  Rupa Karyampudi , Partner,  MK Disability Lawyers
Posted by Rupa Karyampudi , Partner,  MK Disability Lawyers

Whether or not your insurance company has approved your claim for short-term or long-term disability benefits, you have rights under the law with regards to your employment. These rights are separate from your disability claim. Disability benefits that are paid by an insurance company are governed by insurance law, which looks at the relationship between you and the insurance company.

The relationship between you and your employer (in a non-unionized position) is governed by employment law, which comprises of legislation (or statutes) and the common law (case law or precedents developed in the court). The applicable statutes in Ontario are the Employment Standards Act and the Ontario Human Rights Code, for most employees. For federally regulated industries, including broadcasting, airlines, and banks, the provincial statutes do not apply and the applicable statutes are the Canada Labour Code and the Canadian Human Rights Act.

Employee Obligations During Disability

While you are absent from work due to disability, you have a duty to maintain contact with your employer. Your employer has a right to find out your current health status. You must respond to your employer when they request an update on your condition. If you ignore your employer, it may be construed that you have “abandoned” your employment.

While you may be obligated to provide medical evidence to explain your absence, your employer is not entitled to know your specific medical conditions. The employer is entitled to your prognosis, not your diagnosis. Further, your employer must provide you with a reasonable opportunity to get the requested medical evidence.

Frustration of the Employment Contract

If you have been absent from work for an extended period of time, at some point your employer may try to terminate your employment. This could be a case of discrimination and wrongful dismissal, as your employer has a duty to accommodate your disability to the point of “undue hardship.” If your employer did not do enough to try to accommodate you prior to terminating your employment, you could be entitled to damages for pay in lieu of notice as well as damages for discrimination against you on the basis of disability.

In a situation where an employee has been absent due to an extended illness, employers often claim that the employment contract has been “frustrated”. This is when a contract becomes impossible to perform without fault of either party to the contract. If your employment contract is deemed to be frustrated, then you are only entitled to statutory damages under the Employment Standards Act or Canada Labour Code. You are not entitled to common law notice or pay in lieu of notice.

Frustration is a fact-specific determination that is made on a case-by-case basis. Whether an illness entitles an employer to terminate the contract due to frustration will depend on many factors, including:

  • The terms of the contract;
  • The availability of sick leave and pay;
  • How long the employee is likely to remain ill;
  • The nature of the job;
  • The nature of the illness;
  • The length of service; and
  • How long the employer should reasonably be expected to await the employee’s return.*

The most important factors when determining whether an illness has frustrated the employment contract are the nature and expected length of the illness, and the reasonable expectation of recovery. Before terminating an employee, the employer should be reasonably certain that the employee is unable to return to work in the foreseeable future.

Reasonable Accommodation

If you are willing to try to return to work but you have restrictions and limitations, your employer has a duty to accommodate you, as long as it does not cause them undue hardship. You have a corresponding duty to cooperate. Your employer might offer you modified duties or they may change your workspace. The duty to accommodate is required by common law as well as human rights legislation. Your employer cannot terminate your employment because of disability unless your disability cannot be accommodated without undue hardship to the employer.

MK Disability Lawyers has over 20 years experience between its two partners in disability law. We provide expert, personalized legal representation to disabled clients whose disability claims were denied.  If you need legal advice on your disability claim or about your employment, if you have questions about your rights, or if you would like a free consultation, please contact us at info@MKDisabilityLaweyers.com.

The preceding is not intended to be legal advice.  This blog is available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice.  By using this blog, you understand that there is no solicitor-client relationship between you and the blog publisher.  The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.  If your employment has been terminated because of your disability and you need legal advice, contact a lawyer specializing in disability law.

*James A. D’Andrea, David J. Corry & Heather I. Forester, Illness and Disability in the Workplace, online: WestlawNext Canada.

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