Disability leave: how long is too long?

Toronto corporate, commercial and civil litigator, Bruce Baron, says accommodating employees’ long-term disabilities can often be a minefield for employers.

Baron, principal of Gaertner Baron Professional Corporation, says historically, employees who fell ill, left work and qualified for disability benefits might eventually be terminated by their employer.

“Prior to 2005, the Employment Standards Act (ESA) did not require employers to pay notice or severance pay to an employee who left on disability leave as a result of injury or illness,” he says.

However, in 2005, the Ontario Court of Appeal struck down the section of the ESA that denied severance pay to certain disabled employees on the basis that this was unconstitutional.

“I often have employers ask me how to deal with employees who have been off work on disability leave for over two years,” Baron tells AdvocateDaily.com. “While each case varies, it is generally not advisable to terminate such an employee. Doing so may automatically trigger the notice and severance pay provision of the ESA, which can amount to 34 weeks’ pay.

“Further, terminating a disabled employee could attract damages for discrimination under s. 46.1 of the Ontario Human Rights Code,” he adds.

Baron says employers should be aware that employees are entitled to reasonable disability leave and this period may last months or even years. Courts do not look at the length of leave but rather look at many factors such as the nature of the illness or injury, the prospect of recovery, and the reasonable contemplation of the parties at the time the employment contract was entered into.

“For example, if the employer’s benefit plan includes long-term disability insurance coverage, then it was arguably in the contemplation of the parties that the employee may become disabled and off work for a period of years,” he says. “The employer should not terminate the employee and should be prepared to return the employee to his or her position when they recover.

“Further, employers have a duty to accommodate the employee including any special needs they may have following their recovery and return from disability leave,” he says.

Baron says while case law has historically yielded modest damage recoveries to employees terminated and not accommodated while disabled, the Court of Appeal’s decision in Strudwick v. Applied Consumer & Clinical Evaluations Inc. 2016 ONCA 520, should serve as a wake-up call for employers.

“In Strudwick, the Court of Appeal awarded the plaintiff — who only earned $21,800 per year — damages corresponding to 20 months of lost income, plus damages under the Human Rights Code as well as damages for infliction of mental suffering, aggravated damages and punitive damages for a total of $246,049.”

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