“Am I still employed while on Long Term Disability?”
In short: yes. Unless your employer has terminated your employment, you can usually assume that you remain an employee while on sick-leave from work.
There are a few possibilities that could end one’s employment while on long term disability. The most common scenarios that might end one’s employment while on short or long term disability leave are resignation, termination, frustration, and abandonment. We will briefly address each of these scenarios below.
1. Resigning while on short term disability (or LTD)
We can’t stress this enough, it is rarely to your benefit to resign while on short or long term disability. Although you might decide to quit while on short term disability, before quitting your job we strongly recommend speaking to an employment and disability lawyer that can guide you through the process and explain your rights, your options and the impact that different decisions could have.
Not only can this cause problems or eligibility concerns with respect to your short and long term disability benefits, but usually resigning will disentitle you to any severance package that you might otherwise be entitled to if your employer were to terminate your employment.
To summarize, speak to a disability lawyer before deciding to quite while on short or long term disability.
2. Terminated while on Long Term Disability
One might be terminated by their employer while on long term disability in Ontario. Many employees assume that if they commence sick leave, or inform their employer of an illness they cannot be terminated and that their job is protected. Unfortunately, this is not the case, and we deal with many individuals who were wrongfully terminated while on long term disability. Once again, we recommend speaking with an experienced employment and disability lawyer to review any package to see how it could impact your long term disability payments, and to ensure that any release your employer may ask you to sign does not put your long term disability payments at risk.
3. Frustration of Contract
If an employee is off on long term disability for a long enough period of time, their employer might assert that the employment relationship has been frustrated, bringing the employment to an end. This will usually take place after at least 1 or 2 years on long term disability, and rarely happens within only a few months (although we have dealt with a number of cases where an employer attempts to assert frustration within just a few short months). This is dealt with in greater detail in a previous blog post. If interested in learning more please read our other blog posts or contact our disability lawyers to discuss your specific situation.
4. Job Abandonment
One of the most frustrating scenarios for an employee on disability is when an employer claims job abandonment. Although the legal test for this is quite high for the employer to assert many employers attempt to do so anyways. Usually this will require a clear and unequivocal resignation. This can take the form of an employee who verbally informs their employer that they have no intention of returning to work after the termination of their disability benefits, an employee who refuses to respond to communications from their employer ignoring them instead, or as in one recent court decision where the employee left the province which the court interpreted to reasonably indicate the employee’s decision to never return to the employer.
If you have concerns about protecting your employment, or about one of the above issues, speak to a disability lawyer today to learn about your rights and how to best protect your employment while on long term disability.