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Sonia Gill asked 1 year ago
Hi,
We have an employee who has been on LTD for 2+ years. His 24 month period ended up January 24, 2023 but his definition was not changed. The insurance provider has no clear prognosis other than they do not foresee this employee returning this year. Below is the message we received from them:
We have accepted employee’s claim past their change of definition in active management.
There is no return to work date and it is not expected that they will be able to return to work in the next year as their condition is severe.
However recovery is expected eventually.
Please let me know if you have any additional questions.
My question is, what are our rights here? Do we as the employer have any right to ask for additional medical to understand what the prognosis may be? Can we make a claim for frustration of contract based on this and pay out a reasonable severance? Or do we need to continue to accommodate up to undue hardship and settle in for the long haul? Your help is greatly appreciated.
Thank you,
Sonia
1 Answers
Rick Tobin answered 1 year ago
First of all, yes you can make a request for additional information and a reasonable prognosis. After two years of disability, you can terminate the employee and pay the minimum severance under a "frustration of employment" - but we urge you to get specific legal advice if you are going to pursue this avenue.
Are you concerned however that this employee may want to come back to work in the future? Are you holding the position available and not backfilling?
I would assume that this employee is being paid through your insurance, and they may be reclassifying the employee after the 24 months as your plan may necessitate it, or the dispersals may stop after 2 years and the employee may need to look to CPP or government sponsored disability compensation - either way, it isn't costing you anything, and severance would. If you have backfilled the role, you would need to accommodate a return to work eventually, if and when the employee makes that determination, and only if it doesn't force any undue hardship on the business.
From a cost perspective, you are probably better off just letting the LTD play out and asking for more clarification on the prognosis. You will avoid a potential legal struggle associated with a termination and the difficulty in proving frustration of employment. If, somewhere in the future, the employee can return to work, you may have to accommodate a RTW plan, but eventually you will have your experienced worker back in the fold. Does that mean you have to terminate the person you've hired to backfill that role, absolutely not - that would definitely be undue hardship. Does that mean you have to create a role and add salary costs you cannot afford (if that is the case), absolutely not - that would definitely be undue hardship.
Your legal and financial risk is far less to just wait and let this play out.
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