Medical Issues on Termination of Employment

Written on behalf of Peter McSherry

There are many issues to be considered in assessing a settlement offer on termination. One such issue is the health of the person who has been fired.

Ontario law requires every employer to continue health and insurance benefits for a minimum statutory time period following termination. The minimum period after three months is one week. This increases a week a year after two years of employment to a maximum of eight weeks.

This has important consequences for any person suffering from a medical disability at termination or within the relevant statutory period. Should the employee prove he or she was disabled during this time period, he or she can recover full short and long term disability benefits for as long as he or she is medically qualified. It is vital to get medical evidence to prove the disability in this time period. This claim is brought against the employer usually for short term disability and the insurance company for long term disability, which usually starts after 6 months. These claims continue well beyond the termination date as long as there is a medical diagnosis within the statutory period and the medical disability is uninterrupted.

For this reason, it is often prudent to get a medical examination before signing a release which gives up all claims, including this one.

Should the disability occur within the “common law” notice period yet after the statutory period, there can be a claim against the employer for the full extent of lost disability benefits. This presumes, of course, no release being signed.

Disability benefits are somewhat complicated as usually the test for recovery changes over time. Typically the insurance sum is due for 2 years when the employee cannot work for the specific job held on termination. After 2 years, the test usually is can the employee work in any job for which he or she is qualified by reason of education, skills and work experience.

When qualified, disability can last for up to age 65. Such a claim on these facts can be brought against the employer.

To make this issue even more complicated, when the termination decision was influenced by a medical disability, a human rights complaint may be brought. One case recently award reinstatement and 12 years back pay to a person who was adversely treated due to such a medical disability.[1] Human rights awards are complicated. Not every claim can be predicted to be of this magnitude.

Take Advice Before You Act

Needless to say, this issue is unduly complicated. This is no time to be acting on your own.

Situations of this nature mandated effective legal advice. Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a poisoned work environment or a constructive dismissal claim. Contact us online or by phone at 519-821-5465 to schedule a consultation.

[1] Fair v Hamilton-Wentworth, upheld by the Divisional Court, in turn upheld by the Court of Appeal