According to a Statistics Canada survey conducted in 2012, nearly 4 million Canadians had a disability that limited their daily activities, including more than 15% of Ontarians. We’ve discussed before some of the benefits available to Ontarians when a disability prevents them from earning an income through work, including:
- Private disability insurance purchased by the individual or her or his employer.
- Workers’ compensation benefits if the disability results from a work-related injury. (Note that workers’ compensation benefits are subject to a special sets of rules, so we won’t be discussing them in more detail in this article.)
- Canadian Pension Plan (CPP) disability benefits, which are monthly payments to Ontario workers who have a severe and prolonged disability, are younger than 65, and have contributed the required minimum amount to the CPP program.
- Ontario Disability Support Program benefits, which provides an array of income-support benefits to Ontarians who are substantially disabled and financially needy.
Today, we want to discuss a related question that we often hear: Can an employee be fired while on disability in Ontario?
The short answer to that question is it depends — mostly on the reason that the employee was fired. Nothing in the law protects an employee from being fired while on disability for reasons unrelated to his or her disability. But the law does protect Ontarians against discrimination in employment on the basis of disability. If an employer fires a disabled employee, and the employee’s disability was a factor in that decision, then the employer may have violated the Ontario Human Rights Code.
Let’s explore those two points in more detail.
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The Ontario Human Rights Code: Disabilities and Employment
In Ontario, the Human Rights Code protects Ontarians against discrimination and harassment in employment and other areas on the basis of disability or certain other grounds. Section 5 of the HRC states that “[e]very person has a right to equal treatment with respect to employment without discrimination because of . . . disability.”
In section 10, the HRC defines disability broadly. The term includes:
- Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect, or illness;
- A condition of mental impairment or a developmental disability;
- A learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;
- A mental disorder; or
- An injury or disability for which workers’ compensation benefits were claimed or received.
In addition to prohibiting discrimination, the HRC requires employers to accommodate disabled employees to the point of undue hardship. Accommodation requires the employer to investigate the employee’s needs and how he or she may be accommodated. It also requires that any accommodation offered by the employer must be substantively reasonable.
(Note that, even if an employee’s disability cannot be accommodated without undue hardship, the employer may still be liable for wrongful dismissal if the employee’s disability does not rise to the level of frustration of contract. That’s a separate question that goes beyond the scope of this article, but you should discuss it with your lawyer if you’ve been fired for a disability.)
The HRC and Disability Benefits
So, let’s return to the two parts of the answer we gave to our question in the introduction in light of the HRC:
- The HRC does not render a person on disability immune from firing.
The HRC doesn’t specifically protect an employee against being fired while the employee is on disability. Instead, the law only protects the employee from discrimination because of his or her disability. That’s not nothing, but it is a somewhat different protection than some people expect.
In other words, being on disability does not make an employee immune from being fired for other reasons, such as bad behaviour or if the entire business shuts down.
- The HRC prohibits discrimination and requires accommodation.
Remember that, under the HRC, (1) An employer cannot discriminate on the basis of disability; and (2) the employer must accommodate a disabled employee (3) to the point of undue hardship.
Given those three provisions, an employer may violate the HRC’s prohibition on discrimination in employment on the basis of disability if the employer fires a disabled employee, and the employee’s disability was a factor in that decision. Firing an employee because he or she is absent as the result of a disability means that disability was a factor in the firing.
Instead of simply firing an employee absent because of a disability, the employer has a legal obligation to ascertain the employee’s needs and determine how it can accommodate the employee so that he or she can return to work.
Note that the employee’s disability need not have been the only factor or even the dominant factor — if it was a factor at all, the employee may have a claim under the HRC. Whether the employer intended to discriminate is also irrelevant. Workers rights under the HRC do not depend on the secret goings-on in employer’s minds.
How Preszler Law Firm Helps Disabled Ontarians
Just as Ontario law protects disabled Ontarians against unscrupulous employers, it also protects them against unscrupulous insurers. Disability-insurance companies often try to use highly technical or confusing language in their policies to avoid keeping their promises to those covered by the policies.
Preszler Law Firm in Toronto helps protect Ontarians who are or become disabled against such behaviour by insurance companies. We guide our clients through the process of qualifying for, obtaining, and appealing denials of short-term and long-term disability benefits offered by insurance companies, the Canadian Pension Plan, and the Ontario Disability Support Program.
If you or a loved one’s disability benefits have been denied, or if you need assistance in applying for the benefits you are entitled to, our experienced Ontario disability lawyers are ready to help you. We represent clients on a contingency basis, which means you don’t pay us anything unless and until we recover benefits for you.