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Can I be denied workplace benefits because I’m over 65? Add to ...

The question:

I am over 65 years, and still working with a company I like and involved in a job I enjoy. The company recently changed their retirement policy, and those over 65 can opt to remain working, with most of the usual benefits offered by the company.

Recently, my doctor advised I will need some surgery, and will need four to six weeks off work. This is fine with my employer, but there are no income replacement benefits that I qualify for because I am over 65.

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I am in a unionized environment, and when I discussed this with the union, I was told this kind of benefit is simply not available for anyone over 65 years. The four to six weeks off work will be a significant income loss for me.

Given that many companies have an option to work beyond mandatory retirement, and the world seems to be moving in this direction – would this not be considered a form of “ age discrimination”? I was wondering if I could present this to a Human Rights board for an opinion/review. If those over 65 years continue working, shouldn't they have the same option for medical disability insurance that is offered for those under 65?

The union-representatives could not (or would not) give me any information on how to follow up with my questions, as I was told it would contravene the union policy. Even though I pay a fortune in union dues, this seems to me, as a union member, a denial of representation.

Would you be able to advise on how I should proceed?

The answer:

Mandatory retirement has basically been abolished throughout the various jurisdictions in Canada over the past decade, meaning that employers can no longer legally discriminate against their older employees. Despite this prohibition (and there is always a “but” in workplace law), the elimination of the mandatory retirement did not fully eliminate the ability of an insurance company or employer to reduce or eliminate employment health and insurance benefits for employees older than 65 years of age.

This is because the legislation in most provinces and territories still authorizes health insurance plans to treat individuals over 65 years old differently, without this distinction amounting to discrimination.

In Ontario, for example, both the Employment Standards Act and the Human Rights Code (which ironically are statutes that in almost all other cases are designed to protect employees) have sections which are interpreted to allow employers and insurance companies to treat individuals older than 65 years of age differently with respect to their health benefits. As a result, these employees have little recourse.

Despite the legislation, some collective agreements in unionized workplaces may guarantee health benefits for all employees regardless of age and at least one labour arbitrator has concluded that an employer could not restrict benefits for its older employees. Therefore, the denial of benefits could technically be illegal depending on the specific language in a collective agreement or an employment contract for non-union employees. However, these cases are exceptions and, for the most part across Canada, employers and insurance companies can take steps to reduce or eliminate benefits to employees over 65 years of age without it legally amounting to discrimination.

Your second issue is a complaint often made against labour unions, but seldom is it successful. Unions have a legal duty to fairly represent their members, which extends to advancing their interests and grievances in good faith and not acting in a manner that is either arbitrary or discriminatory. It is not clear why your particular union will not assist you. Its decision could be based on the absence of merit in your complaint, the costs of advancing your case or, not least, politics – which play a large part in any union decision. Often an individual’s best interests will get left behind. Although you have the right to complain that your union is not fairly representing you, it is usually a very difficult case to establish.

Daniel A. Lublin is a workplace law expert and a partner at Whitten & Lublin.

Do you have a question on careers, labour law or management? Send it in to our panel of experts, which includes career coaches, a recruitment expert and an employment lawyer: careerquestion@globeandmail.com. Please be advised that while The Globe and Mail may publish your submission, your name and address will be kept confidential.

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