header_people.jpg

Posts tagged: Disability

WSIB Benefit Changes Effective January 1, 2018

By , January 11, 2018 11:29 am

Claiming benefits through WSIB because of harassment or bullying at work just got much easier. Until very recently, the Workplace Safety and Insurance Act only allowed employees to claim workers compensation benefits if they experienced traumatic mental stress at work. This was very difficult for employees to prove.  The law said that the stress had to be brought on by an event that was sudden and unexpected, such as seeing a fatal accident at work.

As I wrote previously, in this blog, the law was found to be unconstitutional. Employees who experienced chronic physical illness could receive benefits.  However, those who developed chronic mental illness could not.  This treated employees differently on the basis of disability, which is not allowed.

The Ontario government has now changed the law.  Employees can seek benefits for both chronic and traumatic mental stress that arises because of work.  

 

What does this really mean?

This change is very significant. Employees who became sick from harassment at work, now have another avenue to seek redress and compensation.  The change in the law recognizes that issues at work can affect employees’ mental as well as physical health.

Employees will need to show that a regulated health professional, such as a family physician, has given them a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders. They will also need to show that they experienced substantial work-related stressors like bullying/harassment which caused or significantly contributed to the chronic mental stress.

If an employe experienced chronic mental stress from work at any time since April 29, 2014, and has not filed a WSIB claim, she still can.

The changes to the legislation are also clear that managerial decisions which cause mental stress are not covered.  If the employee experienced chronic mental stress as a result of a demotion, transfer, discipline or termination, he will not likely qualify for WSIB benefits.

If you have experienced mental stress because of work and are considering your legal options, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

 

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Can my employer ask me to attend an independent medical examination (or IME)?

By , September 8, 2017 10:23 am

We often receive calls from employees who have been asked by their employers to submit to an independent medical examination, or an “IME,” in response to the employee’s request for accommodation. The highest court in Ontario was recently asked to decide whether an employer is within its rights to ask employees to submit to such an examination as part of their duty to accommodate employees.

Bottiglia v Ottawa Catholic School Board – The Facts

After having been on a medical leave for approximately two years, Mr. Bottiglia contacted the Ottawa Catholic School Board (“the Board”) to discuss his eventual return to work. Due to conflicting medical notes from Mr. Bottiglia’s psychiatrist, the Board advised that it wanted Mr. Bottiglia to undergo an IME, relying on an internal Board policy for accommodating employees. Mr. Bottiglia agreed to attend an IME, provided that certain conditions were met. One of these conditions was that the parties agree on the identity of the independent medical examiner and that neither party would communicate with the examiner in the absence of the other party. After the examiner was selected, a dispute arose between the parties regarding a letter sent by the Board to the doctor, which Mr. Bottiglia believed violated the conditions agreed upon. On this basis, Mr. Bottiglia refused to attend the IME unless another examiner was chosen. This brought matters to a standstill, which led to Mr. Bottiglia filing his complaint to the Tribunal.

The Decisions

The Tribunal found that the Board did not act in bad faith during the accommodation process, rather, the Board had a legitimate basis for questioning Mr. Bottiglia’s psychiatrist and requesting an IME. The Tribunal concluded it was Mr. Bottiglia who failed to participate in the accommodation process. Therefore, his complaint was dismissed.

Mr. Bottiglia then applied for judicial review of the Tribunal’s decision. The Ontario Divisional Court found that the Tribunal’s decision had been reasonable: in certain circumstances, an employer may ask for a second medical opinion as part of its duty to accommodate. One such circumstance cited by the court is when an employer has a reasonable and legitimate reason to question the adequacy and reliability of the information provided by the employee’s medical professional.

In a complaint to the Human Rights Tribunal of Ontario, Mr. Bottiglia alleged that his employer, the Ottawa Catholic School Board (“the Board”) had discriminated against him by not allowing him to return to work from a medical leave until he submitted to an examination by a doctor of the Board’s choosing.

Mr. Bottiglia sought permission from the Ontario Court of Appeal to appeal the Divisional Court’s decision. However, the Ontario Court of Appeal did not permit Mr. Bottiglia’s appeal to move forward.

Lessons to be Learned

Despite the Board’s success in this case, it is important to note that the Divisional Court’s decision does not give employers unlimited discretion to require their employees to submit to IMEs. The Divisional Court was clear that an employer may ask for a second medical opinion in certain circumstances. The Divisional Court did not list all such circumstances, which means employers must still prove that they have a reasonable and legitimate reason for requesting the IME.

If you have been asked to submit to an IME and you would like to know whether such a request is legitimate, you should speak to a human rights lawyer. If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Getting terminated during a medical leave

By , August 11, 2017 9:00 am

Generally speaking, if an employee is terminated without just cause they are entitled to receive “reasonable notice” of termination unless they have agreed to accept a specific amount of notice of termination. An employer can provide working notice or termination pay in lieu of this notice.

What happens when an employer provides working notice of termination and the employee cannot work due to medical factors? A recent decision from the Ontario Superior Court of Justice confirmed the principle that for disabled employees, working notice does not generally start until after the employee is medically able to work.

McLeod v 1274458 Ontario Inc. – The Facts

Keith McLeod had been employed as a mover at 1274458 Ontario Inc. (Frontier Sales) for almost 20 years. On September 18, 2015, Mr. McLeod was involved in a non-work-related car accident. As he was unable to return to work, he was placed on an unpaid medical leave of absence. His physician provided a medical certificate supporting the fact that Mr. McLeod was experiencing both physical pain and PTSD as a result of the accident.

On January 31, 2016, shortly after Mr. McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice that his employment would be terminated effective July 31, 2016 as the retail business was shutting down. According to the company, the period between notification and the store’s closing date would be considered working notice.

Mr. McLeod provided a letter from his new doctor which corroborated his previous physician’s opinion. Frontier Sales believed the doctor’s letter was inadequate, and warned that they would terminate Mr. McLeod for just cause if more information was not provided by April 22, 2016. Frontier Sales took no action after April 22, 2016.

After his doctor cleared him for light duties on a part-time basis, Mr. McLeod returned to his job on July 27, 2016. On July 31, 2016, Frontier Sales shut down as planned.

The Decision

At trial, Frontier Sales argued that since Mr. McLeod was not capable of working between January and July 2016, he was not owed anything in damages for reasonable notice. The court rejected this argument. A previous decision from the Supreme Court of Canada found that the fact that an employee cannot work is irrelevant to the assessment of wrongful dismissal damages. Relying on this decision, the Ontario Superior Court of Justice awarded Mr. McLeod 9 months’ pay in lieu of notice (i.e. from January to October 2016, when he began his new job).

If you have been terminated while on a medical leave, it is important to consult an employment lawyer, whether or not you are provided some kind of notice from the employer. In addition to notice, you may be entitled to other kinds of damages, such as general damages for a violation of the Ontario Human Rights Code, or aggravated damages to compensate for the employer’s bad faith for terminating an employee during a medical leave.

 

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

When can your Employer ask you for an Independent Medical Exam?

By , July 28, 2017 12:01 pm

Employees often work with disabilities. The health issues they experience do not seriously affect their ability to complete their job duties. But sometimes, illness or injury becomes too much and an employee requires time away from work. This can be a difficult period. Most people do not like being off work and want to get back as soon as they are well. They see their doctor and listen to their doctor’s advice about when to return and under what circumstances.

When is your own doctor’s advice not good enough?

In a recent decision, the Divisional Court reviewed the circumstances under which an employer can request an employee to visit a doctor of its choosing. This is called an independent medical exam (IME). Essentially, the employer wants a second opinion on what your doctor has recommended.

The Case

In Bottiglia v Ottawa Catholic School Board, Mr. Bottiglia was a Superintendent of Schools. He became depressed when he was passed over for the position of Director of Education. Due to his depression, he was off work for several months.

When he wanted to return to work, his doctor recommended a lengthy accommodation period.

Mr. Bottiglia’s employer had some concerns. His doctor had previously stated that his condition had been resistant to treatment and he would require an extended period of time off work. Then, it seemed to the employer that his doctor did an about-face on his medical assessment and stated Mr. Bottiglia could return to work. This return date also coincided exactly with the end of Mr. Bottiglia’s paid sick leave.

The employer requested Mr. Bottiglia visit another doctor for an IME. He initially agreed. But when he saw that the employer had advised the second doctor that it was concerned Mr. Bottiglia’s return was premature and based on the end of pay instead of health, he refused to attend the appointment.

Mr. Bottiglia resigned and brought a human rights application claiming that his employer had failed to accommodate his disability resulting in lost wages and damage to his dignity and self-worth.

The case made its way through the Human Rights Tribunal of Ontario and to the Divisional Court.

The Decision

Significantly, the Court held that the Human Rights Code gives employers the right to ask for an IME in certain circumstances. Previously, many believed an employee’s contract needed to state that an employer had the right to ask for an IME, otherwise the employer could not ask for one.

However, this do not mean an employer may always require an IME. It is only allowed if it will help the employer determine what is required to accommodate an employee. And, there must be a reasonable basis to request it. For example, when inadequate or conflicting medical information is provided by the employee. Employers must also be unbiased and neutral when requesting an IME from a doctor.

If you are off work with a disability and have been asked to attend an IME, you should speak to an employment and human rights lawyer. You may reach us at MacLeod Law Firm at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Your Rights as a Disabled Employee

By , March 13, 2017 3:56 pm

Employers have additional obligations towards disabled employees.

In addition to rights under Ontario’s Human Rights Code, the Accessibility for Ontarians with Disabilities Act & the Workplace Safety & Insurance Act, Ontario’s courts and administrative tribunals have awarded disabled employees special damages for shoddy treatment.

If you have been disabled at work then you have numerous rights under Ontario’s worker compensation laws including the right to be reinstated.

If you have a disability that prevents you from performing all of your job duties then you generally have the right to be accommodated.

If you are showing obvious symptoms of a disability then your employer has a duty to inquire about your accommodation needs.

If your employer has more than 50 employees then it must prepare a written individual accommodation plan for you.

Your employer cannot take your disability into account when making employment related decisions including the decision to terminate your employment.

If you have disclosed a disability to your employer and the employer treats you badly because you are disabled then you may be owed special damages.

If you have been treated differently because you are disabled, or your employer has refused to accommodate your disability, or your employer has refused to bring you back to work following an injury or a disability then you can speak to an employment lawyer about your rights.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Panorama Theme by Themocracy