Earlier in 2012, we reported on the case of Brito v. Canac Kitchens. In this case, the plaintiff was a Canac Kitchens employee who, at point of dismissal, received pay in lieu of notice. This meant the plaintiff’s benefits were not covered 16 months later when he developed laryngeal cancer. In the Canac Kitchens case, the courts ruled that the plaintiff should have been entitled to 22 months of notice, including benefits, and that Canac Kitchens was required to pay the plaintiff’s disability benefits retroactively.
This year, a Stratford, Ottawa woman Jane Kittmer received retroactive payments totaling more than $5,000 after fighting for Employment Insurance (EI) sickness benefits for nearly three years. Kittmer was diagnosed with breast cancer while on maternity leave, and received no EI Sickness Benefits due to her inability to return to work. Her fight brought about a change in the legislation. Now, employees who fall ill while receiving EI maternity or parental benefits can access EI sickness benefits. Sickness benefits of 15 weeks maximum may now be paid to a person who is unable to work because of sickness, injury or quarantine while on leave. Employees can either pause their maternity/parental leave to take the sickness leave, or take the sickness leave once the maternity/parental leave is up.
What does this mean for employers trying to manage their employees’ benefits even in the face of long-term illnesses like cancer?
Long-term illness is one of the greatest issues facing Canadian workplaces, as over 8 million Canadians provide long-term care for a family member (source: Statistics Canada) and illness-related absenteeism cost Canadian companies approximately $16 million in 2012 (source: iPolitics). Government programs like EI Compassionate Care Benefits for people who leave work to become caregivers of a family member who is at risk of death within 26 weeks help to fill some of the gap, but there are still many people—and companies—hurting for a lack of clear benefits and policies.
In the United States, plaintiffs benefit from specialized law firms that can afford a sick patient an actual mesothelioma cancer lawyer to fight for restitution. In Canada, we’ll need to take a different approach.
If you are in human resources and are responsible for your company’s benefits program, it is time to become very clear on when employees are entitled to leaves and benefits. Learn how to educate employees on not only your own personal benefits program, but also the programs provided by the government such as EI and other services. Be prepared for situations like Jane Kittmer’s, in which an employee takes leave for one life event but develops cancer or another long-term illness while on leave. Learn exactly where your company’s legal responsibilities stop and end once an employee is too ill to return to work.
Often, this means hiring a full-time lawyer to help your company manage constantly-changing benefit rules and EI laws. Do not assume that legal assistance won’t be necessary; employees are working longer than ever, and the likelihood that multiple employees will eventually develop long-term illnesses and require some type of long-term benefits is extremely high.
It should be every company’s goal to do what is best for its employees. It is, however, also important to manage profits and expenses. The best way to do that is to understand both what is legal, and also what is fair. Then you can help provide for your employees when they develop cancer or another long-term illness without losing significant amounts of money as a company.
Once diagnosed with cancer, some employees may decide to work during cancer treatment or may take long periods of time off. Some employees may be caregivers for a family member diagnosed with cancer and will require time off to provide care and support. Consequently, employer understanding and accommodation is required. It is recommended that employers understand what is required when accommodating a person who is suffering from a disability. Certain things about the employee’s condition, treatment plan and side effects can make it such that the employer needs to create more realistic work demands. Employers must ensure that any such employees are not disadvantaged compared with their colleagues. More information and tips on dealing with cancer in the workplace can be found on First Reference’s online publication HRinfodesk (login required).
Rachel Matthews
Rachel is a recent graduate originally from California who explores topics of justice in society through her blogging.
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