-I live in Ontario and worked at an Provincial Government job in management (not unionized) for 7 years before LTD started (total 9 yrs with employer now)
-Insurer is Desjardins
-I started medical leave for Burnout/Mental health approx 2 yrs ago.
-After 1 yr, I did a RTW trial, which failed, and went back on LTD.
-Insurer set up a Cognitive & Vocational assessment. I voiced that I didn’t feel like management was a good fit for me.
-Insurer sent me a decision letter, stating that I do not meet Disability criteria of ANY occupation after my LTD anniversary date of July 16. They stated that I am well-positioned to re-enter the workforce, provided the job aligns with my aptitudes and cognitive profile and that accommodations were advised (structured work environment, minimize multitasking, explicit instructions, structured supervision, comprehensive training). The letter didn’t mention a RTW option, and mentioned giving me some time to discuss next steps with my employer or find alternate employment.
-My employer (HR) called to ask me what my plans were going forward, and I was vague, saying I was undecided, but contemplating another RTW They were guarded in their response, saying that my first RTW didn’t go well, and they wouldn’t want me to experience that again. They pointed out that in the assessment, the recommended occupations and accommodations don’t align with my current management position. They also said that there were no other non-unionized vacancies in our organization. They voiced that I might not understand the impact/implications of the insurer’s letter, and advised that I should reach out to Desjardins to discuss the assessment and to ask for support in finding suitable employment. (I wrote to my insurer and I am waiting for their response). I explicitly said to HR that I wanted to explore ALL my options, and they only mentioned retiring early & taking a reduced pension, or taking an unpaid leave, or finding other employment. They did not offer me a RTW, or a package/severance to leave the organization. HR closed the meeting saying that they will circle back in a few weeks to talk to me again about next steps. I was left with the distinct impression that they don’t want me back.
QUESTIONS:
Can my employer deny my RTW request? If so, do I have any rights that I can exercise in this situation?
If they agree to a RTW trial, but it fails again, what happens next? Would I need to start a new claim for STD, then a new LTD claim?
Which possible options does my employer have? (I’m trying to anticipate their next move and arm myself with knowledge in order to decide how I should respond in our next meeting)
Your case is complicated and I would get a free consult with Resolute.
My opinion on your questions.
No, not if you have a letter from your doctor stating you are capable of a RTW with very specific accomodation then the provincial govement would have a hard time proving they don’t have something that they can accomodate you with.
That’s complicated. If you fail at RTW right away your insurer will likely not support you as you are in the any occupation phase. You’ll need to look at the contractual wording of your master Ltd contract.
Employers can do pretty much anything, it all depends on if you hold them accountable for not to human rights legislation and the common law.
I wouldn’t expect your insurer or employer to help you.
Any advice they give will benefit them.
Be very careful what you say to the insurer.
Sounds like the employer is saying they find it unreasonable to accommodate you which means to me get a lawyer.
Hi I recommend you get a confidential consultaiton, but I can give basic answers to your questions:
Answer - This is complicated and if you are a non-unionized worker you may have grounds for wrongful termination or disability discrimination if the employer refuses to allow a return to work plan. But this is very dependant on the facts of each case.
Most insurance policies have “recurrence” clauses that cover failed RTW situations. You would go back on the same claim, not start over if the RTW failed within a certain time. Usually 6 months or less.
This hard to answer without knowing your employer and work situation. Basically, employers have two choices for terminating a NON UNIONIZED employee returning from sick leave: 1) the employer can terminate the employee for non-discriminatory reasons and pay any termination and/or severance pay owed under the employment contract or 2) The employer can terminate the employment based on “frustration of contract” and pay any termination pay or severance owed under the applicable employment standards laws.
David Brannen
Disability Lawyer with Resolute Legal
The response posted above is based on the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with a lawyer, fully explain your situation, and allow the lawyer enough time to research the applicable law and facts required to give an adequate opinion. The basic information provided above is intended as a public service only, a full one-on-one discussion with a lawyer should be done before taking any any action. The information posted on this forum is available to the viewing public and is not intended to create a lawyer client relationship with any person. If you want one-on-one advice, please click here to request a free consultation or call toll free 1-877-917-7050 to speak with a member with our disability claim support team.
Hi there … Just wondering, doesn’t the employer have a duty to accommodate by putting this person in another job. I imagine a provincial government has a vast number of jobs, unionized jobs even, that they could put him/her into. Don’t they have a duty to do that instead of just claiming frustration of contract? They bought LTD insurance for the employees, doesn’t that anticipate that this scenario can happen? Kinda feels like a way to not accommodate.
I can’t imagine the government of the most populous province in Canada having hardship placing this person in a unionized job. Unless I don’t understand what surrounds the concept of “undue hardship”.