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The question

I started a new job and was told that my health benefits would begin on day one. I have this in writing in an e-mail from HR. However, a few days into my new job, I was told that the HR person was incorrect and I need to wait for three months. Immediate benefits coverage was a major factor in choosing this role. What are my rights in this situation?

The first answer

Kelly Slade-Kerr, managing partner, HHBG Lawyers – Employment Justice, Vancouver

You have the right to insist that the employer enroll you in the benefits plan immediately.

When you accepted the offer of employment after the employer’s representative advised you that health benefits would begin right away, immediate health benefit coverage became a term of your contract of employment. Generally speaking, an employer does not have the right to make unilateral changes to the terms of your employment without providing adequate notice.

Most benefit plan providers will permit an employer to waive the waiting period for enrolling employees in the employer’s benefit plan. If the employer does not waive the waiting period and enroll you in the benefits plan immediately, they would be in breach of the employment contract. You would have the right to insist that they make you whole. For instance, by reimbursing you for the cost to obtain replacement benefit coverage for the waiting period or to pay for the health expenses that would have been covered by the employer’s plan.

If you signed a written offer of employment, it is possible that the employer has reserved a right to make changes to the terms of employment. Many offers contain language that benefit plans can be changed at the discretion of the employer. Employers are still required to provide notice of such changes.

Employers have a duty of care to provide employees with accurate information about their benefit plans. Hopefully, the employer realizes they are responsible for remedying the mistake made by the HR representative and the employment relationship can continue smoothly.

The second answer

Sarah Levine, lawyer, Taylor Janis LLP, Edmonton

Health and dental benefits are certainly an important factor in one’s decision-making when it comes to which job is right for them. I am assuming the health benefits you are seeking are from a group health insurer of which your employer is a customer and for which the employees are beneficiaries. In this case, unfortunately, it is very common for the providers of such benefits coverage (for example, the insurance company) to have in place a three-month waiting period as a requirement for eligibility for coverage. The benefits provider likely does this to protect themselves in a way, to ensure brand new employees do not pile on coverage claims as soon as they are hired and then quit. In other words, your employer does not have control over when benefits coverage kicks in for its employees under the plan and, in your case, their human resources department was ill-informed.

In terms of your recourse, from an employment law perspective, it is limited. This is in part because of the fact that this is the insurer’s policy terms which your employer has no control over, but also because as a brand new employee, you would have a negligible amount of damages.

Practically speaking, you could bring this miscommunication to the employer’s attention and request that they essentially bridge the gap for you until you become eligible for coverage under the group policy. In order to persuade your employer that they should cover your immediate medical expenses, you should consider: 1) disclosing up front what these expenses are and what they are likely to cost and 2) explaining why you cannot wait three months for your benefits to start. You could also offer in writing to reimburse your employer that amount or have it deducted from your pay if you quit or are fired with cause before you are able to “work off” their upfront investment in you.

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