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Sonia Gill asked 1 year ago
Hi, I have two cases that I have questions about and both of them are on LTD and their 24-month period comes to an end in Jan and Feb of next year.
In the first case, employee has been deemed permanently disabled and will not be able to return to their role. In his case, we would like to sever ties so what would our next steps be? Are we able to claim frustration of contract and sever ties or should we be providing some sort of notice? If we do offer reasonable notice asking them to return within a reasonable time and employee is not able to return do we also need to offer some sort of severance or will the notice period suffice to end the relationship?
In the second case, the employee is not deemed permanently disabled but will not be able to permanently carry out their current role. As there is no change of definition LTD insurance provider will not be bridging them to retirement and I would like to know what the employer's obligation is here. We've held their position for 2+ years and if they are not able to return, can we claim frustration of contract and part ways? Their restrictions are very limited, one of them being not able to work in any sort of stressful environment. Do we have the right to say we cannot accomodate the restrictions and if we do, do we owe severance?
Your help is greatly appreciated.
1 Answers
Rory L answered 1 year ago
Employers should generally be wary of terminating an employee on LTD. If it can be proven that the termination was motivated in any way by the employee’s disability and frustration does not apply, the employer opens themselves up to heavy financial penalties. Human Rights Codes across Canada protects employees from discrimination of disability. Employers must attempt to accommodate their employees, up to the point of undue hardship.
However, you may be able to prove that waiting for for these employees to be able to fulfill their work duties is undue hardship, see this case: "Was Terminating Employee After 36 Months of Disability Leave Discrimination?"
Here's a few more pieces that may help you navigate this situation.
Long-Term Disability Basics: Know Your Rights
A Manager's Guide to Reasonable Accommodation
Accommodation Policy
Sonia Gill
replied 1 year ago Thank you, this was so helpful, I really appreciate your help on this and all of the information you’ve provided.
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