MK Disability Lawyers' Statement on COVID-19 - Read Post

With all the recent media attention dedicated to the spread of coronavirus, you may be concerned that you or your loved ones could fall ill or be quarantined due to this widespread illness.  If that should happen, you may wonder what impact that would have on your income and your ability to meet your personal financial obligations.

Will your employer continue to pay your income in the event of a pandemic?  Will you be eligible for short-term or long-term disability benefits through, either your employer’s group disability policy or under a private disability insurance policy? Could your employer terminate your employment if you do not attend work?

These are all reasonable questions and concerns, given the projected scale of the coronavirus and the potential consequences for not only the global economy but also for our own personal medical and financial wellbeing.

How could the coronavirus prevent me from working?

There are a number of reasons why coronavirus may prevent you from working, including:

  • Quarantine due to exposure to the virus;
  • Illness from infection;
  • Illness of a family/household member;
  • Cause or trigger an anxiety and/or panic disorders; 
  • Unsafe workplace (due to risk of possible infection); and
  • Lack of work (due to lay-off, termination of employment).

It is important to remember that your legal protections under employment and human rights laws and your eligibility for income benefits such as disability insurance benefits or social assistance benefits, may depend to a large extent on the reason you are not able to work.  

We will explore some of the reasons you might not be able to work due to coronavirus and what some of your rights and income entitlements might be, depending on the circumstances of your absence. 

What if I can not work because I have the coronavirus?

If you are infected with the coronavirus, it is important to take all precautionary measures, which includes not attending work.  Depending on your health benefit plan, you will likely be entitled to sick days and possibly, short-term disability benefits depending on how long you are ill.  You might also be required to apply for EI Sickness Benefits through the federal government (15 weeks). 

Under most short-term disability plans, you must demonstrate that you are not able to work at your job due to illness.  In the case of the coronavirus, this should not be difficult to prove and your doctor will be able to complete the required medical notes and forms.  

If you suffer complications that prolong your recovery and you are not able to return to work during the short-term disability period, you would then apply for long-term disability benefits.  To qualify for long-term disability benefits you would need to demonstrate that you are not able to perform the duties of your occupation or any occupation earning a gainful income; depending on the wording of your insurance policy.  

If your disability claim through your group/private insurance is denied, you might be eligible for the usual social assistance benefits for disability, such as Ontario Disability Support Plan, Ontario Works and eventually, Canada Pension Plan Disability if your disability becomes severe and prolonged. 

If your claim for short-term or long-term disability benefits is denied, you should contact MK Disability Lawyers, immediately. 

What if I cannot work because I have been quarantined or because I am caring for a sick family member? 

If you are not able to work because you have been quarantined, your employer might allow you to work from home; take sick days and vacation time, or they may approve an unpaid/paid leave of absence for the period you must be away from work. Whether or not your employer pays you during the quarantine period will be at its discretion. 

You might also consider other unpaid leaves provided for under the Employment Standards Act, particularly,  if you are caring for a sick family member while you are home. Such leaves include Sick Leave, Family Caregiver Leave, Family Medical Leave, and Critical Illness Leave.

In these circumstances, your employer should not take steps to terminate your employment as they would risk a constructive dismissal or human rights claim.  

While you could also submit a short-term disability claim, if the reason you are not working is solely that you have been quarantined, your claim might not be approved on the basis that you are not actually ill and you are functionally able to do your job.  

What if I cannot work because the coronavirus is affecting my mental health?

If you do not have the coronavirus and you have not been quarantined, but the coronavirus is causing you stress, anxiety, panic and/or depression or if it has triggered some other mental illness (such as PTSD or Bi-Polar Disorder), to the extent that it is interfering in your ability to function at work, then you may have a valid short-term disability claim and potentially a long-term disability claim, depending on how long it takes for you to recover.  

Many situational issues can cause or trigger a new or existing mental illness, resulting in short and long-term disability.  Should your mental health be affected to the extent that you are not able to work, it is important that you see your doctor immediately and seek appropriate treatment (such as therapy and medication), in order to treat your condition and to be successful in your short-term and long-term disability claims.  Your employer should not be terminating your employment if you are not able to work due to illness–including, mental illness.  

If your claim for short-term or long-term disability benefits is denied due to mental illness, you should contact MK Disability Lawyers, immediately. 

What if working will put my health at risk?

Your employer’s obligations to you in accordance with employment and human rights laws continue in the event of a pandemic. 

This includes the duty to provide you with a safe workplace.  For example, your employer may need to take additional health and safety steps to protect employees such as asking an employee who has travelled to an affected region to stay home for a period of time or sending a visibly sick employee home. In doing so, however, your employer needs to ensure they are not discriminating against employees (based on disability, race, nationality, age or ethnic background), which would be contrary to human rights laws. 

If you are concerned that attending work would endanger your health and safety and you refuse to work, you should advise your employer who must then take steps to investigate your concerns and take reasonable steps to accommodate you. For example, you might refuse to travel to affected areas in the world for work or you might refuse to attend work because you are at greater personal risk of complications should you contract the coronavirus (due to such factors as your age or existing medical conditions). Arguably, these are both reasonable bases to refuse to work and should not result in the termination of your employment. Your employer may be able to accommodate you by allowing you to work from home. 

What if I am laid off or terminated due to the Coronavirus?

If your employer terminates your employment due to a down-turn in the economy resulting from the coronavirus or if it chooses to terminate your employment for any reason, your employer must comply with its legal obligations (employment laws, contracts and collective agreements).  

It is important you contact an employment lawyer if your employment is terminated to ensure that your employer has complied with the law.  Contact us if you would like a recommendation for a reputable employment lawyer. 

What if I become ill from the coronavirus but my employer has terminated me?

If you become ill from the coronavirus or from some other illness/injury before your employment is terminated or even after your employment is terminated but while you are still a member of your group benefits plan, you may still eligible to claim both short-term and long-term disability benefits.  If you have questions about this or if you are late to make a disability claim, you should contact MK Disability Lawyers to discuss your options. 

If you would like to discuss your Long-Term Disability claim with a lawyer, MK Disability Lawyers LLP are experienced lawyers dedicated exclusively to the practice of LTD litigation.  We have represented disabled clients in various professions against all major life/health insurance companies in Canada.  We would be happy to provide you with a free consultation.  

The preceding is not intended to be legal advice.  This blog is made 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 disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.