Too sick or injured to work? 5 things you need to know
Bryan Borzykowski, Special to CP24.com
Published Monday, October 3, 2022 3:35PM EDT
Last Updated Wednesday, October 5, 2022 7:43AM EDT
No one wants their health to get in the way of their job because they’ve gotten sick or injured, but it happens. In fact, 65 per cent of the Canadian population has at least one chronic health condition, while 37 per cent have two or more.
Mental and physical health conditions sometimes require workplace accommodations or the need to take time off work.
It doesn’t always work out, however. According to a 2017 Statistics Canada Survey, of those who required workplace accommodation because of a disability, 59 per cent had all their needs met while 19 per cent had some of their needs covered.
A worrisome 21 per cent reported that none of their workplace needs were met.
“Understanding your workplace rights is crucial when you’re dealing with a disability,” says Jon Pinkus, partner at Toronto employment law firm Samfiru Tumarkin LLP.“You need to know how to access proper support and accommodations.”
He addressed five concerns employees have if they’re too sick or injured to work.
1. Taking medical or disability leave
If you are unable to work due to an illness or injury, and need time off, employers in Canada are legally obligated to provide you with assistance.
“Speak with your doctor and see if they think that you shouldn’t be working due to your condition,” says Pinkus. “If they agree you need time off work, ask them for a letter that you can give to your company. Once this information is provided, your employer must accommodate your medical requirements.”
He adds that clearly outlining the situation in writing to your company is very important when organizing a medical or disability leave.
“Communicating with your employer through letters, emails or even text messages allows you to keep a record of everything that was discussed.”
2. Disclosing your health status to your employer
Generally, workers in Canada have a right to privacy regarding their medical information.
“Your employer isn’t entitled to know the details of your diagnosis,” says Pinkus. “That’s not something that’s relevant to them making arrangements in the workplace.”
During your disability leave, your employer might ask your doctor to complete a Functional Abilities Form.
When used correctly, this form helps your employer plan for your return to work and highlights what workplace accommodations need to be made.
“If you receive this document, make sure you carefully review it,” says Pinkus. “In some cases, companies will try to use it to get information about your diagnosis or treatment plan.”
3. Creating challenging accommodations for the company
By their very nature, workplace accommodations will require some effort on the part of your employer.
“Your company has to take measures to accommodate you, even if they are inconvenient,” says Pinkus.
If your accommodations threaten the viability of the business, or are operationally impossible to do, then your employer may be able to legally refuse to make them on the grounds of undue hardship.
However, Pinkus says this threshold is a difficult one to reach, and there is often a way to accommodate an employee’s needs.
4. Being fired or let go because of the disability
Your employer can’t fire you or let you go because of your illness or injury.
“That’s illegal,” says Pinkus. “If you are fired, that’s likely going to be a wrongful dismissal and a human rights violation. Our firm can take swift legal action to secure full severance pay and additional compensation for harm caused by your employer.”
In Canada, non-unionized employees can be let go for any reason as long as they are provided full severance pay and the reasons for their dismissal are not discriminatory – such as being ill or injured. This is called a termination without cause.
5. Properly calculating severance
There’s a belief that severance pay is supposed to be one or two weeks’ pay or a week for every year of service you have with the company.
While this formula may cover the minimum amount owed by your employer under provincial legislation, a severance package can actually be as much as 24 months’ pay.
“It’s calculated using several factors, including age, position with the company, length of service and your ability to find new work,” says Pinkus. “To figure out how much compensation you could be entitled to, use our firm’s free Severance Pay Calculator.”
To ensure you do receive the severance pay you are owed, he recommends having an employment lawyer review your situation if you are fired or let go for any reason.
“At Samfiru Tumarkin LLP, we can properly enforce your workplace and human rights and ensure that you get the compensation you deserve.”
Contact employment lawyer Jon Pinkus, partner at Samfiru Tumarkin LLP, to get the advice and compensation you need by calling 1-888-861-4555, emailing Ask@EmploymentLawyer.ca or filling out an online contact form.
His law firm represents non-unionized employees in Ontario, Alberta and British Columbia. Discover your employment rights by watching Lior on Ask a Lawyer every Wednesday at 9:30 p.m. on CP24.