Barrister and Solicitor
Mulroney & Company
Insurance is a matter of contract. What that means is that the rules regarding any short-term disability and long-term disability you may qualify for are defined in the specific policy where you are enrolled. Therefore, it is difficult to answer questions regarding the interplay between short-term and long-term disability without seeing the policy and its term and conditions. Usually, there is a cap on the amount of short-term disability you can access at any time or in a lifetime, but it all depends upon your insurance plan. Your insurer has the answer and will happily help you out.
With regard to continued employment and whether you can be dismissed while on a medical leave, this is a complicated issue. In general, it is almost always a breach of the relevant human rights code for an employer to dismiss a person if one of the reasons for the dismissal is they have an illness and cannot attend work.
However, that is not the end of the matter. There are legitimate reasons for an employer to dismiss while someone is away from work due to illness. The more common legitimate reasons are a re-organization and undue hardship. Despite what our natural cynicism may lead us to conclude, re-organizations do happen; jobs do come to an end, departments do close and businesses change.
The other common legitimate reason to dismiss someone while on a medical leave is undue hardship. Undue hardship is a concept from Human Rights law. Undue hardship is the point the employer must reach before being entitled to dismiss someone in contravention of the applicable Human Rights legislation. In practice, undue hardship works similarly to the doctrine of frustration of the employment contract. At some point, there comes a time when an employer cannot hold a job open for a person including, but not limited to, because it is too expensive; the absence causes other employees to suffer beyond reasonable limits; or there is no reasonable prospect of the employee ever returning to work. When the time to declare an undue hardship or frustration of the employment contract has occurred depends greatly on who the person is, the role in the company, the resources of the company and various other factors.
There are reported cases where the employee is absent from work for many years and no frustration or undue hardship is found and alternatively, undue hardship and frustration can be found in a matter of months. Workers who can be scheduled to work whenever they are ready can likely be absent for extended periods without causing either undue hardship or frustration. CEO’s, CFO’s and other executive roles may only have a period of a few months depending upon the company. Making a determination of undue hardship very much depends upon the facts of the individual case.
If anyone suspects their rights have been violated or they are an employer seeking clarity in their decision-making, Please seek legal advice as soon as possible. There may be limitation periods which may affect their rights.
This is provided for information purposes only and may not be relied upon as legal advice. The law in your province may not be the same as stated here. For personalized advice, please contact an employment law or human rights lawyer in your jurisdiction.