I received a call the other day from a client, the owner of a local business, who had just learned that one of his employees was going to be undergoing cancer treatment. He wanted to know what his obligations were as the individual’s employer and whether there were ways he could help.
Over the past year I have been struck by the number of files that have crossed my desk that in some way involved an employee living with cancer. Below, I have reviewed what Ontario employers must do and as well as some options for what they can chose to do for their employees living with cancer. At the end I put forward a few ideas for where legislative changes could be made.
What Employers Are Required To Do
Accommodate to the Point of Undue Hardship
Under the Ontario Human Rights Code, employers have a duty to accommodate the needs of people with disabilities to the point of undue hardship to make sure that they have equal opportunities, equal access and can enjoy equal benefits.
Practically speaking this means that if an employer learns that their employee will be undergoing cancer treatment it will be important to explore with the employee whether accommodations may be required and to work together to ensure that possible accommodation solutions are investigated. Examples of accommodation may include, allowing a flexible work schedule, allowing remote work; modifying job duties; allowing reduced work hours; allowing short-term and long term disability leave and exploring alternative work.
Employer Sick Leave
Under the Employment Standards Act, 2000 (ESA) employers must provide 3 days of unpaid sick leave per year. Clearly, if an employee needs weekly treatments, two days of unpaid leave will quickly be used up.
If an employee advises that they will need to be off work for medical reasons for a period of seven (7) days or more, and during that time the employee will not be receiving any insurable earnings (i.e. vacation pay, sick leave etc) the employer must issue a Record of Employment (ROE). Employers should advise their employee that they may be entitled to receive up to 15 weeks of EI sick benefits.
What Employers Can Do
Vacation pay: All employees are entitled to two weeks of annual vacation leave during their first five years of employment and three weeks annual vacation after that. Although not required, some employers will advance the employee a credit on their vacation entitlements for the year.
Supplemental EI Benefits Program: While the default rule is that if an employee is in receipt of EI they cannot collect other wages (without a set off) the Supplemental EI benefits program allows employers to “top up” an employee’s EI sick benefits while they are on leave. Employers must request permission to
offer such a program but, once approved, the Supplemental EI program offers a number of benefits including, enabling an employee to take sick leave without causing them to suffer a huge financial penalty. It also avoids putting employers in a situation where the employee continues to work because of financial pressures but is not able to fulfill the functions of their job because of their illness and treatment.
Speak to the group benefits provider. If your workplace has a short term disability plan, the employee may be able to take advantage of short term benefits. Employers with group insurance plans may also want to provide the employee with information on applying for long term disability if and when the employee and their medical team deem doing so is appropriate.
Donating Vacation Days Policy: The client I mentioned above followed up later and told me that some of his staff wanted to know whether they could donate some of their vacation leave to their colleague. They wanted to make sure she could take a day off to get treatment, and still be paid. As it turns out, while the ESA does not allow an employee to give up their vacation days if they are only entitled to the minimum amounts (for example two weeks of vacation) if an employee receives more than the minimums, those excess days can be donated.
Where Changes May Be Possible
I do not think that all people living with cancer are well served by the traditional forms of benefits that are available. EI sick benefits and most short and long term benefit programs presume a situation where a person becomes ill or injured and is required to be off work for a continuous block of time, after which they return to work.
The reality is many cancer treatments do not require individuals to be off work full time but those same individuals cannot necessarily work full time. While some employers may be able to accommodate by providing part time hours, not all employees can afford the reduction in pay. An employee who cannot afford the reduction in hours may try to push themselves to maintain full time hours to the detriment of their health, and despite best efforts, the quality of their work. From this point, it is not difficult to see how one ends up with stress, resentment and potentially wrongful dismissal and human rights claims.
Some employers do allow employees to bank a significant number of sick days which employees can access on an as needed basis. Not all employers can afford to offer such a benefit. I would like to see the EI sick benefits program and/or health insurance benefit plans changed to allow people, upon diagnosis to receive coverage for a certain number of days, weeks or months of paid leave that could be taken on an as needed basis.
Ensuring a stable income while receiving treatment would help ensure that employees could still work but afford them the flexibility to get the treatment and take the recovery time needed. Under such a plan Employees would not be financially penalized for only being able to work “part time” as the benefit plan would compensate the employee for the days that they had to miss for medical treatment and recovery. Such a plan could also help respond to those situations where an employee is too sick to work full time but not sick enough to get LTD benefits and so end up being caught in limbo. Employers for their part would benefit by having their employees working when they are healthy and able, and financially supported when they are too sick to work.
Whether you are an employee or an employer who is faced with a situation where an employee has been diagnosed with cancer, consider reaching out to an employment lawyer for advice. Rather than turning the process into an adversarial one, counsel can help all parties navigate what can be a very stressful experience in a positive, mutually beneficial manner.