Unless it is provided for in your employment contract or collective agreement, your employer does not have to pay you while you are on medical leave. However, many employers have short term and long term disability plans for their employees and where they do, they need to inform the employee of the plan and provide the employee with the information or documents required to apply for the insurance coverage. Be sure to ask your employer if you have any disability insurance coverage. Because disability plans have strict time limits for applying and commencing litigation if you are denied, it is important to apply as soon as possible. If you do not have a disability plan through your employer or otherwise, you will be able to apply for EI sickness benefits. If the injury is due to a car accident, you will also be able to apply for wage loss benefits with ICBC (Part 7 benefits). Where the injury is severe you may also qualify for CPP disability benefits.
Most employees assume that they cannot be terminated while on medical leave. The Employment Standards Act, which provides protection for employees on various issues, does not require employers to grant employees a leave of absence when they are ill or injured. However, the BC Human Rights Code, prohibits employers from discriminating against employees on the basis of disability, which includes being injured in an accident. The Code does not provide comprehensive protection. Just because you are ill or injured does not mean that you cannot be fired. It simply means that the illness or injury cannot be the reason or even part of the reason for your termination. An exception to this rule is where the employer has accommodated you to the point of undue hardship.
Appropriate accommodation must be assessed on a case by case basis. In order to accommodate your disability your employer is entitled to medical information that will assist them in this duty. It does not mean that your employer is entitled to a complete copy of your medical file or a detailed report. It does mean that your employer is entitled to some confirmation from a medical practitioner that states either that you can not work for medical reasons or when you can return to work, on what terms you can return and how your condition affects your work. Essentially, only information specifically relevant to the work situation needs to be provided to your employer. Your specific diagnosis or treatment are not relevant. Also, once in receipt of this information, your privacy is paramount, therefore any information received from your medical practitioner must only be disclosed to those at work who need to know.
To prove undue hardship, an employer is going to have to show that (1) it has received information about your ability to work (2) the accommodations it explored and (3) that the cost of further accommodation would have a significant effect on the viability of the organization. Generally speaking, large companies are going to have a much higher threshold for accommodation than small companies.
Employment law issues will often come up in personal injury claims. Where they do, it is important to discuss them with your lawyer.
Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.