The health status of a person at the point of termination of employment is a very important issue which is often neglected. There are two important considerations.
The first is that Ontario minimum standards legislation requires that all benefits remain in place for the statutory notice period, which will be a minimum of a week (after three months’ employment), and can extend for as long as 8 weeks. This can be very important, as a person who becomes ill during this period can still claim insurance or other benefits from the provider. This claim could possibly extend for as long as the medical issue continues uninterrupted and not simply for the statutory period. It will be important for the employee to be able to prove when the disability commenced.
Should the medical issue, however, arise beyond the statutory period and yet within the common law period, the employee may claim the value of lost insurance or other benefits against the employer. This claim, similarly, is not limited to the notice period but for as long as the illness may continue, usually capped at age 65.
For this reason, it is recommended that an employee obtain a medical examination prior to accepting a settlement offer which will require a full release.
If the termination decision was influenced by a medical issue or even a perceived medical issue, a human rights complaint may be made. One case recently awarded reinstatement and 12 years back pay to a person who was treated adversely due to such a medical disability, a decision which was upheld on appeal to the Divisional Court and the Court of Appeal. Human rights awards are complicated. Not every claim can be predicted to be of this magnitude.
Employers and Employees Should Seek Legal Advice
Medical issues on termination can be complex, as may be evident. This shows the need for advice before a termination decision by an employer is contemplated. For employees as well, this issue is far from intuitive. Before you sign a release and give up your rights, get advice.
Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647 792 0310 to schedule a consultation.