Know Your Rights If You Become Seriously Ill

By Mark Swartz
Monster Contributing Writer

What if you had to have this kind of unexpected conversation with your boss?

Employee: I went to see my doctor this week because I really haven’t been feeling well.

Boss: It’s nothing serious, I hope.

Employee: Actually, I’m afraid it is. Very serious. I found out that I have heart disease. Coronary artery disease, they call it.

Boss: I’m so sorry to hear that. What does this mean for you?

Employee: They’ve scheduled a major operation for me in three weeks. I have to have triple bypass surgery so my heart can receive more blood.

Faced with a sudden medical condition that is going to disrupt your work – possibly for quite some time – what are your rights and obligations so that you keep your job, and continue getting paid?

Your Employment Is Legally Protected

There are established laws that govern your rights as a seriously ill employee. “Specifically, the Canadian Human Rights Act prohibits discrimination on the basis of illness or disability” says nationally recognized Employment and Labour Law specialist Howard Levitt, of law firm Lang Michener LLP. “An employer is legally obligated to keep you on staff, though perhaps in a modified role if your illness makes that necessary.”

This means that the employer cannot legally fire you just because you get sick. They must offer you employment that accommodates you until you can resume your normal role.

If you need to take an extended leave to deal with your situation, the employer has to continue paying you (or their Short-Term Disability and Long-Term Disability insurance programs will fund you according to their specific terms). Then, when you return to health and are ready to reclaim your old job, it has to be made available to you, regardless if another employee has been temporarily filling in for you.

Your Legal Obligations If You Fall Seriously Ill

Levitt adds however that the ill employee has certain obligations as well. “I generally advise employees to rush news of their illness to their employer, particularly if the medical condition might jeapordize their job,” he says. Not only is this the courteous thing to do, it also helps establish your legal case for proper accommodation at work.

“Once you have made your employer aware of your illness, they are much less likely to terminate your employment. They want to avoid being penalized if you lodge a complaint against them to the Human Rights Commission, or Tribunal, of the province in which you work,” adds Levitt.

Furthermore, when you are offered a position that accommodates your health, you need to accept it if it’s reasonable. However your pay may be adjusted downward while you are in this interim role, should it pay less than your normal job.

In any event, Levitt recommends that you notify your supervisor of your illness in writing. Send them an e-mail that says something along the lines of “Just to let you know, I have been diagnosed with (name your medical condition here). I am being treated by a physician, who I will try to see after hours or before work if possible, and I will try to minimize the impact on my job performance.”

Help Your Employer To Help You

If your illness is serious you should state the sort of impact it will have. Affirm in your email that you will need time off and give an estimate of the duration. Mention that your recovery period might be of “x” months or weeks after you start getting better. Then tell them you are interested in coming back and suggest the kind of work or role you would be suited for. The more advance notice you can give, the better.

Consider as well reassuring your boss that you aren’t “malingering” (which is a legal term for “faking your illness”). Provide a doctor’s note that verifies the details of your e-mail. Accurately fill out the medical forms that your employer requires you to complete. And submit updates according to the schedule that determines your continued pay and employment.

Levitt adds a caution about seeking special treatment at work. “If you immediately ask for the cushiest job possible, yet you fail to submit proper evidence that supports this request, your employer may well become suspcious.”

Work With Your Doctor

If you are seriously ill and will be taking an extended leave, your physican(s) can be your ally. They are the ones who will have to fill out the paperwork that satisfies the needs of your employer and their health and disability insurance providers

So show up for appointments and be honest with your doctor. Trying to manipulate the system can backfire against you if it’s found that you are witholding, or lying about, important facts of your case.

What To Do If Your Employer Doesn’t Cooperate

Most employers abide by the laws that govern discrimination against illness. If you encounter problems, your remedies lie first and foremost with the Human Rights Commission (Or Tribunal) in your province.

It cost you nothing to file there if your employer lets you go while you’re sick. Waiting times for results can be up to a year, however it could well be less. Meanwhile you can be assigned a lawyer to manage your case for free if you qualify.

If you win, you might be awared damages for emotional suffering, reimbursement of your legal costs, backpay, and even reinstatement to your old job. It won't heal your illness. But it might be a healthy legal remedy for you.