Employee worked part-time while on LTD for three years
Question: One of our employees went on long-term disability (LTD) with a back injury. While on LTD he began working a part-time job while collecting benefits. When his benefits ran out, he contacted us for a return-to-work date. He has been away from the job for three years, with no contact. Are we still obligated under the accommodation principles to bring him back?
Answer: This question is hard to answer without knowing the employer’s disability policy but, in general, the employee should be given a return-to-work date.
The duty to accommodate is not what requires an employer to bring the employee back. The accommodation principle stipulates how a disabled employee must be treated and what accommodations must be made if the employee is still disabled upon her return to work. It is the ongoing employment contract that would require reinstatement, assuming the employer has not terminated that contract while the employee was away.
The fact the employee had taken a part-time job while on disability leave will not affect his right to return to work. If the part-time job influenced anything it could be his eligibility for disability insurance — but this would depend on the wording of the policy.
Disability policies commonly have an “own job/any job” distinction. For a preliminary period, typically two years, the employee is able to collect benefits if he is disabled from doing his own specific job. In this situation, having a part-time job that is not his regular job may be well within his rights. After this preliminary period, disability insurance policies often shift and say a person is only allowed to continue collecting benefits if she is unable to perform any job. If the employee was in the “any job” period of the insurance policy and was working part-time, this would likely affect his entitlement benefits.
If the employee is still disabled when he returns to work he must be accommodated to the point of undue hardship. The duty to accommodate arises from human rights legislation, which forbids discrimination on the basis of a number of factors including disability.
If this employee is no longer suffering from a disability, then the duty to accommodate will have no particular significance in relation to his return to work and the possible termination of his employment. If it is a non-unionized workplace, and the employment was not terminated during his absence, the employment contract continues. This means the employer has an obligation to employ the individual, which may only be terminated with reasonable notice or for just cause. If there is a written employment contract, it may also contain specific provisions on termination. It would be contrary to human rights legislation if the termination was related in whole or in part to a disability.
In a unionized workplace, it is important to carefully review the terms of the collective agreement, as it may impact this employee’s entitlement to return to work and the employer’s rights in relation to termination of employment. Most collective agreements do not permit the employer to terminate employees simply with reasonable notice. Instead, it is likely the collective agreement requires termination to be for just cause.
