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THE QUESTION
I was recently diagnosed with a serious illness and my treatment plan is making it impossible to keep up with my full-time job. I’m worried about my finances if I have to stop working. Are there any legal protections that exist for employees in my situation, or other options to help pay my bills while I’m recovering? What steps should I take to protect myself?
THE FIRST ANSWER
Rajiv Haté, senior personal injury and disability lawyer, Kotak Law, Mississauga
Yes, legal protections exist. Legislation varies between provinces, but under the Ontario Human Rights Code an illness can be a protected disability and your employer has a duty to accommodate your medical needs up to the point of undue hardship.
My strong recommendation is that you not resign from your employment, because quitting can disqualify you from other benefits that may be available, such as short- or long-term disability benefits and employment insurance. Instead, discuss your symptoms and limitations with your doctor and consider obtaining a medical note confirming any accommodations you may require.
If your condition has reached the point where you are no longer capable of working, obtain a medical note confirming that you can no longer work as a result of your illness. If your employer offers paid sick leave or short- or long-term disability benefits, apply for those to help provide income support while you remain medically incapable of working. If you have a private disability policy, you can apply for benefits under that policy as well. You can also apply for EI sickness benefits, which provide up to 26 weeks of paid leave, and for CPP disability benefits, which provide a monthly income benefit provided you have sufficient CPP contributions and meet the disability test.
The best way to protect yourself is to ensure you report your illness, your symptoms and how they are affecting your ability to perform your job to your medical practitioners so there is evidence supporting your condition, restrictions and limitations should it ever be required. You do not have to disclose your diagnosis to your employer, but you will have to disclose it to a disability benefit provider. You should also make sure you are obtaining regular, appropriate treatment, as this is often required under disability benefit policies. Finally, contact a lawyer to understand your rights if your employer attempts to terminate your employment while aware you are medically incapable of working, or if you are denied benefits by a disability insurer.
THE SECOND ANSWER
Joshua D. Lerner, partner, Lerners LLP, Toronto and London, Ont.
Most provinces now offer unpaid, job-protected leave for serious illness. Depending on the province, the relevant legislation typically provides leave of up to approximately six months, though some require a minimum period of prior employment and employers may request a doctor’s note confirming your condition.
This leave can often be taken in chunks rather than all at once, which helps if your treatment involves periodic appointments rather than one long absence. Separately, all provincial human rights legislation requires employers to accommodate workers who have a disability through modified duties, a flexible schedule or extended leave, for as long as reasonably possible. Terminating an employee because of an illness or disability can amount to discrimination, giving you additional recourse if your job is at risk.
Job protection doesn’t pay your bills while you are away from work, so you should look into options for income support. If your employer offers short-term disability insurance, it typically covers 60 to 100 per cent of your salary for up to six months. Long-term disability, if you have it, picks up afterward and usually pays 50 to 70 per cent of your income, sometimes for years. If you don’t have STD or LTD, EI sickness benefits can provide 55 per cent of your income for up to 26 weeks. If your condition is long-term, Canada Pension Plan disability benefits may also apply. It’s also worth asking an accountant about the disability tax credit and medical expense tax credit, both of which can offset costs.
I would advise getting a letter from your doctor, outlining your limitations and expected timeline, as many leave provisions require this documentation to qualify. Then talk with HR about your leave options, ideally before you stop working. Apply for EI sickness benefits as soon as you stop working, because there’s a waiting period. Keep copies of all correspondence with your employer and consider consulting an employment lawyer if you’re unsure how these protections apply to you.
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