Can an Employee Be Fired While on Long-Term Disability in Nova Scotia?

It would seem likely that if an employee was injured on the job and ended up on long-term disability (LTD), they shouldn’t be a candidate for having their job terminated. However, being lawyers experienced in LTD, that’s not always the case. Nova Scotia law doesn’t necessarily make it easy for the employer to fire someone on LTD, but it can happen and be legally valid.

Who Is Eligible for Long-Term Disability in Nova Scotia?

Any permanent employee who works at least 28 hours every two weeks is eligible. There is a three-month waiting period for the eligibility to start. That means that someone who started a new job will become eligible for LTD three months after starting that job.

Suppose someone is a part-time permanent employee who doesn’t work 28 hours every two weeks but averages out at 28 hours every two weeks over the course of a year. In that case, they’re eligible beginning on February 1 after completing a year of continuous employment.

What Are Some Reasons an Employee on Long-Term Disability Can Have Their Job Terminated?

In general, employers can let employees go without specific reason as long as they give adequate notice or pay an appropriate salary amount. This is known as termination without cause, and it’s legal unless it violates Nova Scotia’s anti-discrimination laws that prohibit firing someone based on the employee’s gender, race, age, or disability.

There are also cases known as termination for cause. That means the employee’s behavior significantly crossed the line into unacceptable and that the employee was seriously and willfully misbehaving. That can include situations such as committing crimes at work (including theft), sexual harassment, conflict of interest, or insubordination. Such cases usually require documentation in order to be proven in court if necessary. That could lead to a situation where someone on LTD is terminated for something such as embezzlement if the embezzlement can be proven.

However, the courts expect the employer to have set a very high bar for what’s considered cause. Being a few minutes late to work or other minor issues aren’t likely to be considered relevant.

As for termination without cause, situations such as an employer hurting financially and needing to cut costs might be acceptable if it can justify letting the employee on LTD go.

What Is Frustration of Contract?

This is a legal concept that says that if it’s more unfair to the employer to keep the disabled person employed than it is for the disabled person to be fired, then it may be acceptable legally for the employer to terminate the employee.

Frustration of contract may be applied if the employer faces a hardship due to the employee’s long-term absence. That could involve the employer having to pay someone else to do the disabled person’s work or that work not being completed. It’s not a step an employer should take lightly because they could still be held responsible for terminating a contract in a discriminatory manner.

Employers should look at the type of long-term disability affecting the employee, whether or not the employee is expected to partially or fully recover, and when that recovery might occur. They may also take into account how long the employee worked for the employer before going on LTD.

What Is An Employer Expected to Do to Accommodate an Employee on Long-Term Disability?

There are several expectations for the employer if they’re going to avoid being considered discriminatory, depending on the type of work the employee does, where the work happens, and the level of disability. Many of these fall into two broad categories.

• Forms of assistance – The employer could provide the employee with things such as assistive devices, additional training, retrofitted workspaces (including ramps for wheelchairs, etc.), or other types of assistance.
• Flexibility – The employer should look at whether the employee could manage to do some or all of their work if various aspects of the job were given more flexibility, including working from home, working different or reduced hours, reconsidering the overall responsibilities and tasks expected of the employee, etc.

What If An Employer Claims Undue Hardship Due to an Employee on Long-Term Disability?

For an employer to want to terminate an employee on LTD because of the undue hardship it causes the employer or the employer’s business, they need to prove that the accommodations they’re asked to provide would be too costly or create risks (health or safety) in the workplace.

Undue hardship can also include the business being unable to operate properly or profitably because of the employee’s absence. If the workspace would require costly renovation or investments in adaptive technology that could be proven financially detrimental to the business, that may be undue hardship, too.

However, the employer must be able to prove the hardship, not simply claim it. If you or someone you know has been terminated and believe that the employer doesn’t match these standards, talk to an experienced long-term disability lawyer as soon as possible.

What Should I Do if I’m on Long-Term Disability, and My Employer Terminates My Employment?

Then, call NOVA Injury Law at 902-706-5205 to schedule a free case review. Our team of experienced, knowledgeable, long-term disability lawyers can help you work through your case and determine the best approach to move forward. We understand how stressful this can be and are here to fight for your rights. Call us today.