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The Question

I work in administration for a hospitality company and was temporarily laid off as a result of the COVID-19 pandemic. I have a history of anxiety, and my medication was paid with the help of my company’s benefits plan. Will I now still have my benefits to pay for this medication? This is a big worry for me because since I lost my job, my stress and anxiety issues have spiked significantly. Even if they call me back to work, I’m not sure I would be able to perform my job. Can I make a new claim for disability benefits?

The First Answer

Rajiv Haté, personal injury and disability lawyer, Kotak Law, Mississauga, Ont.

Your employer must maintain your benefit coverage during a temporary layoff. Therefore, you should continue to have your benefits help you pay for your medication. Under the Employment Standards Act in Ontario, if the temporary layoff lasts more than 13 weeks in any period of 20 consecutive weeks, it can be considered a constructive dismissal (with some exceptions). Under the common law, a temporary layoff is not permitted unless it was contemplated in the employment contract or there is a history of layoffs which you previously acquiesced in, otherwise it can be considered a constructive dismissal. The courts have held that a person’s common-law rights typically prevail over the Employment Standards Act. If you are located outside of Ontario, there may be different rules that apply to you.

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You can make a claim for disability benefits as long as you continue to be covered for benefits under the disability-benefit plan. If you are not able to work due to a disability and your medical practitioners support that you are unable to work, then you can, and perhaps should, apply for disability benefits. Provided your disability claim is based on your inability to perform your job, rather than the availability of work, you should have a valid claim. Importantly, while disabilities include physical ailments, a disability can also include mental health challenges such as anxiety and depression. The caveat is that some disability policies state you must be “actively at work” in order to qualify for benefits, so you should review the policy and/or consult a disability-benefits lawyer who can assist you further.

The Second Answer

Christie Gilmour, employment lawyer, Forte Law, Surrey, B.C.

There is hope but no guarantee. If someone were to be going through this situation in British Columbia, the Employment Standards Act does not require an employer to continue benefits during a temporary layoff. Other provinces may have different rules about this. Your employment contract or company policy may address continuation of benefits while laid off, but unless you work in a unionized environment or industry that commonly uses layoffs, it is unlikely.

While benefits-continuance may not be legally required during a temporary layoff, many employers are choosing to provide benefits coverage where the insurer will allow because:

  • It provides security and valuable support to employees in this difficult time; and
  • If they do not and something happens to the employee while laid off, the employer could be liable to the employee for lost benefits under the common law.

Unfortunately, your employer may not have the right to continue benefits during the period of the layoff, as this must be part of the existing insurance plan or agreed to by the insurer. Fortunately, in response to the pandemic, many insurers across Canada have offered to extend benefits coverage during temporary layoffs, and some have included disability-benefits coverage in those extensions.

Practically, sharing your concerns with your employer may encourage them to extend benefits coverage, and you will know where you stand. You don’t need to share any details of your medical conditions, but you can ask if your extended health and disability benefits coverage will continue. If you are called back to work but are medically unable to return, attempt to make an application for disability benefits. EI sickness benefits can also be an option if disability benefits are denied.

Have a question for our experts? Send an email to NineToFive@globeandmail.com

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