We say unions are a good thing.
They have given workers a voice, an ability to achieve fairness in the employment relationship that can be anything but balanced. They have fought and paved the way for a multitude of societal reforms and benefits in the workplace such as maximum hours of work, overtime, health/dental benefits and bereavement leave. The success of some of these are enshrined in legislation like the Provincial Employment Standards Act and the Federal Canada Labour Code, some of the most progressive workplace protections in the industrialized world. Yes, they have even fought hard for improved workers compensation Legislation, EI Parental leave and Human Rights Codes, so even non-union members can be protected in Canada.
Cracks in the Legal System
However, in the area of non-work related sickness and disability leave, short and long-term disability (STD/LTD) plans offered by employers through “insurance“ programs, there is much work still to be done.
Union members are falling through the cracks and are being left to the devices of private insurance “Advisors” with their never ending demands for up-to-date medical information, who obstruct and generally delay claims, until the employee is forced to go back before their Doctor says they are ready. Yet, unable to fully perform their job functions, the vicious circle continues.
It’s not the fault of the unions, who have bargained well for the availability of these plans to their Members, like any other employer sponsored benefit. But it must be acknowledged there is a largely unnoticed structural hole, which ordinarily protects the rights of non-union members in matters of disability claims.
Disabled union members are largely vulnerable and unrepresented when dealing with the insurance industry. Union members calling our office are desperate for legal assistance. Most of the time we tell them that we cannot help them for reasons set out below. Employment lawyers cannot intervene against the employer in matters involving the collective agreement per labor legislation in most provinces.
On the other hand, labor lawyers who are the traditional guardians of employees rights set out in the collective agreements, do not have experience in dealing with individual insurance claims. Personal injury lawyers are extremely reluctant to intervene when they hear the word “union“.
3 – 6 Month Disability
Most Short-term disability (“STD”) plans available to both unionized and non-unionized employees are self-insured. That means while an Insurance company or a workplace medical advisory company handles the claims, it’s the employer that pays for your income replacement benefits. There is a difficult decision out of the Supreme Court of British Columbia called Nayyar v. Manufactures Life Insurance Company 2012 BCSC that says an insurance company or “workplace medical advisory service“ acting strictly in an administrative capacity (Administrative service only) cannot be directly engaged nor held liable for their “advice” to withhold benefits. The best and only recourse at that time is to hold the self-insured employer directly liable for the benefits withheld, as well as for any failure of accommodation, which may amount to a constructive dismissal. It has also been held in the case of Suleman v British Columbia Research Council (1990), that a law suit initiated against an employer, even to secure wholly legitimate entitlements, may sever the employment relationship, adversely affecting pensions, post-retirement benefits plans and the like.
Most labor lawyers are not accustomed to handling individual STD claims through the grievance/arbitrations procedure integral to dispute resolution within collective agreements. Conflicts are largely based on competing medical reports. There are delays and costs to the union, which serve as a deterrent affecting benefits for all employees in a bargaining unit. The result: Union Workers are largely left to fight the Insurance companies on their own.
Disability Longer Than 6 months
Many employees suffering from debilitating illness or non-work related injury simply give up, quit, go back to work prematurely or wait it out with the help of minimal Employment insurance benefits for fifteen weeks. The problem is if the incapacity persists more than six months, they are forced to apply for Long term disability benefits. Most LTD benefits plan providers are in fact insurance companies and they are not eager to pay out, especially if the illness or injury is chronic. The reality is if an employee had been denied benefits because of a medical non-eligibility under STD, the same issue will hound them for LTD. The tests for eligibility are essentially the same for both benefits programs: is the employee unable to perform the essential duties of his/her own occupation? More doctor reports, processing, waiting, delaying, more queries, maybe even an “appeal”.
The situation is no better for those lucky enough to get on a claim. The Insurance “advisors” will look for the slightest improvement in an employee’s medical prognosis to terminate coverage especially at the end of two years when the eligibility standard changes from inability to perform the functions of “own occupation” to “any occupation”. The objective is to get the employee back to work. The question is: does the employer want to accommodate a recovering employee who is working at less than capacity (perhaps because of a heart attack, depression or simply because they are taking medications to manage pain, which affects their energy and cognitive capacity?).
Employment/Disability Lawyers – An Option for Union Members/Non-Union Employees
There is a solution, or at least a path to it.
Employment/disability lawyers have the expertise and ability to deal with these problems, especially after the expiry of the STD period. In this instance, we are not prevented from going head-to-head directly with the insurance company on behalf of any, union or non-union employee. We work through the court system but with the knowledge that insurance companies almost never allow these matters to go to a trial. In fact, the vast majority of claims are settled right after a claim is filed or at mediation.
We are more than willing to work with the insurance company and get the employee back to work on an accommodated (light duties) basis until they are fully rehabilitated. We recognize that union members are understandably adverse to paying costs for legal services thought to be covered under the collective agreement, so we will always defer our percentage of recovery fee until the matter is settled. We require the insurance company to pay for the majority of legal costs as part of any resolution. It is a little-known fact that all legal fees incurred as a result of an employment and/or disability matter are fully deductible off income tax. While no one should have to resort to legal action to obtain their entitlements, in the event that it’s necessary, no disabled worker should hesitate to obtain an honest assessment of their individual situation. We are always prepared to offer a no charge initial consultation to assess your claim.
Lecker & Associates is a Toronto employment law firm that has fought for employees for over 35 years. Our experienced employment lawyers act as employee-side legal counsel. We have represented clients in thousands of cases involving wrongful dismissal, constructive dismissal, employment law in Ontario, employment contract disputes, sexual harassment in the workplace, and short and long-term disability claims.