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An Employee’s Rights while on Short-Term Disability

Whitten and Lublin | Dec 19, 2018

An employer may offer short-term disability coverage, in which case an employee’s earnings will be more secure in the event they are unable to work for a short-term period. Generally, an employee should expect to come back to their previous job or one that is comparable; it is rare that an employer will be justified in ending employment. There are 2 principles at play when determining job security if an employee’s short-term disability places a hindrance to employment.

The 2 principles at play are the concept of ‘frustration’ and the employer’s duty to accommodate. An employer will be able to justify ending employment if they demonstrate that employment has become ‘frustrated’. Simply, this means that the events that occurred were not foreseeable and future continuance of fundamental duties are unlikely. This, however, would be hard to establish during the duration of the short-term disability coverage, as it can be assumed the employer was able to contemplate such a scenario at the time employment began. Determining frustration in such a scenario would ultimately come down to the nature of the job and contract in place. For instance, frustration would be easier to establish if the employee is highly skilled and has many key responsibilities, making it difficult for the employer to sustain an absence. In any such instance, an employer is also obligated to accommodate an employee up to the point of undue hardship.

Accommodation is a likely requirement with short-term disability cases, as Human Rights legislation defines illness/disability in broad terms. An employer would have to offer a reasonable accommodation, if possible, in order to assist an employee to return to work in a way that allows the employee to perform the fundamental duties of his/her job. In other words, short-term disability coverage is only one form of accommodation that may be offered. Establishing undue hardship is a high standard, and requires problem-solving between an employer, an employee, and, often, medical professionals. Job modification would, at a minimum, have to be assessed as a possibility.

Overall, an employee can expect to return to his/her job upon their return from short-term disability leave. In the event a disability hinders return to work, an employee is entitled to reasonable accommodation. If an employer seeks information from an employee’s medical practitioner/physician for accommodation purposes, the employee is entitled to privacy. An employer may only request information relevant to accommodation purposes. This often does not include the cause of disability, the illness, types of treatment or any diagnosis. Prognosis, a timeline for a return, and limitations while performing job duties is the most common information employers would seek.

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