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No requirement to continue benefits for those on STD or LTD
The Ontario Superior Court of Justice recently reviewed an arbitrator’s decision in relation to the withdrawal of an employee’s benefits who was being accommodated due to a disability in City of Toronto v CUPE Local 79 (2019 ONSC 4045).
In this case, the grievor was no longer able to work full-time due to a disability. While initially he was permitted to stay in the full-time bargaining unit, and enjoy full-time benefits, the employer gave two-years notice that the employee would be moved to the part-time unit if he was unable to resume full-time hours at the end of the period. The employee was eventually moved to the part-time bargaining unit which affected his benefits, vacation pay, sick days and pensionable service. The arbitrator found a violation of the Ontario Human Rights code.
In reviewing the reasonableness of this decision, Justice Swinton noted in Ontario Nurses’ Association v Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), the Court held that an employer was not required to make contributions to benefits programs for disabled employees who are off work. Similar to there being no obligation to continue to pay an employee when they are not at work, benefits are also a form a ‘compensation’ and are not required to be continued.
On this basis the Court held:
“In accordance with Orillia Hospital, the employer does not discriminate by failing to provide the added benefits to which a full-time employee is entitled to a person working part-time hours, even if the person is working part-time because of disability. The difference in treatment with respect to compensation and benefits is because of the number of hours worked, not because of disability, and the employer is not required to compensate the disabled employee for time not worked.”
The Court further noted that this case was not about the scope of the duty to accommodate a disabled employee, as the duty to accommodate does not change the ‘essence’ of the employment relationship, which is that an employee is compensated for the work they perform.
While this decision was in the unionized environment, the principles would apply equally to union and non-union workplaces. It is also important to note that this decision does not deal with a legislated leave, for instance, like parental leave, sick leave, family medical leave etc, which would require the continuation of benefits. In another example, Ontario’s WSIB Act requires the employer to continue benefits for one year for an employee who has been injured on the job.
Aside from ensuring an employer is in compliance with employment legislation, a written policy outlining the treatment of benefits for an employee on a leave will help set expectations, ensure equal application and held reduce potential discrimination claims.
Should you have questions about the intersection of disability and the employment relationship, contact Monkhouse Law today.
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