An employer must reimburse employee relocation expenses if it does not have specific evidence that it could have staffed a vacant position through other means, according to a recent Federal Public Sector Labour Relations and Employment Board decision.

The decision dealt with two grievances filed by Border Services Officers with the Canada Border Services Agency. Both employees had requested to move to a new city in order to fill a vacant position. Under the NJC Relocation Directive, employees who request a move to fill a vacant position are entitled to reimbursement for a wide range of relocation expenses, unless the employer can establish that it could have filled the vacant position without relocation expenses.

In both cases before the Board, the employer alleged that it could have filled the vacancies in issue with a freshly-trained recruit. At hearing, however, the employer’s witnesses testified that there were more vacancies than available recruits at the time of the grievances and that they had no way of knowing if the vacancies in issue would have, in fact, been filled if the grievors had not relocated.

The Board found that this evidence was insufficient to meet the employer’s obligation to prove that it could have filled the vacant positions without relocation expenses. As the Board concluded, the employer’s assertion that it could have filled the vacancies “must not be a hollow statement; there must be some facts behind it to back it up.” The Board therefore ordered that CBSA reimburse both grievors for their eligible relocation expenses, as the employer’s reason for refusing to do so was “without factual underpinning.”

The grievors and the Public Service Alliance of Canada were represented by Morgan Rowe.

On May 29, 2020, Ontario made new regulations under the Employment Standards Act, 2000 to address the legal effects of widespread layoffs. These layoffs arose both from employers having a lack of business and the need of many to take time off work due either to the direct or downstream effects of COVID-19 and the measures taken to lessen the spread of the coronavirus.

The Employment Standards Act, 2000 already allowed for emergency leave for employees who were infected, under mandated isolation, or caring for a close family member. The new regulations primarily provide new rights to employers who lay off employees due to coronavirus.

The regulations allow employers to avoid the  temporary layoff provisions of the Employment Standards Act which convert a temporary layoff into a termination of employment after a certain time period has elapsed. The regulations provide relief from employers by converting the temporary layoff into infectious disease emergency leave as opposed to a termination. The regulations also allow employers to stop contributing to employee benefit plans while employees are on infectious disease emergency leave.

The regulations were released on May 29, 2020, meaning that employers who laid off employees in early March will be exempt from the application of the 13-week and 35-week thresholds required for a layoff to be deemed a termination of employment.  They also deem any complaints that were filed with the Ministry of Labour alleging termination or severance of employment due to a reduction in hours caused by COVID-19 not to have been filed.

How do these new regulations affect my rights?

These new regulations primarily affect your ability to assert that your employer has constructively dismissed you by reducing your hours or not allowing you to work for an extended period of time due to COVID-19. The regulations are fairly clear that such a claim cannot be asserted against your employer with the Ministry of Labour Training and Skills Development Employment Standards Branch.

These regulations risk severely curtailing the remedies available to the some of the province’s most vulnerable workers who may face practical challenges to accessing court-ordered common-law remedies.

However, these regulations appear to only affect the Employment Standards Act, 2000, and not the common law which also provides entitlements for employees in certain situations. As a general rule, the Employment Standards Act, 2000 does not affect an employee’s ability to bring a common law claim against their employer. You may still be able to assert a constructive wrongful dismissal claim at common law if you have been laid off work or if there has been a reduction in your hours (to learn more about what you could claim, see What is Reasonable Notice?). In Popescu v Wittman Canada Inc the Ontario Superior Court confirmed that a constructive dismissal can occur despite the preconditions for constructive dismissal under the Employment Standards Act, 2000 not having been met, meaning it does not have to be a constructive dismissal under the Act to be a constructive dismissal at common law.

These new regulations may also influence the interpretation of existing employment contracts. It is possible that common-law courts will develop their own doctrines to deal with the impact of COVID-19 on employment contracts. Your ability to assert a constructive dismissal will depend heavily on the terms of your employment contract and your individual circumstances. You should seek legal advice before deciding what to do.  

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Many individuals have long term disability (LTD) benefit coverage through their employer.  These are group policies that apply to all employees in the workplace.  A group policy is a legal contract often containing technical language which may be difficult to understand.  Insurance companies will use this technical language when denying or terminating long term disability benefits.  We have identified some of the commonly used terms and have attempted to demystify them here for you.  It is always important to remember, however, that this does not replace legal advice and if you have any questions about your policy or specific situation, you should contact an experienced long-term disability lawyer.

Qualifying Period

This is the amount of time an individual must be an employee before he or she can make a claim for LTD benefits.  The qualifying period can vary depending on the policy.

Elimination Period

This is the amount of time an individual must wait between the first day he or she is unable to work due to disability, usually the first day of sick leave, and the first day they are eligible to receive LTD benefits.  The elimination period can vary depending on the policy.  Individuals who do not have access to paid sick leave or short term disability benefits can apply for EI Sickness Benefits.

Total Disability or Totally Disabled

In order to qualify for LTD benefits, an individual must meet the definition of total disability in the contract.  It does not mean that an individual must be absolutely physically or mentally incapable of doing anything related to her or his own occupation. At the outset, being totally disabled generally means that an individual is unable to perform the regular duties of her or his own occupation.   In the majority of LTD group insurance policies, the definition of total disability changes 24 months after the end of the elimination period.  At this point, in order to continue receiving LTD benefits, an individual must be unable to perform the duties of any occupation.

Own Occupation

This is the work an individual performs at the time she or he becomes disabled. The insurance company does not look at the specific job, but the occupation in general. If the insurance policy defines total disability as being unable to perform the regular duties of your own occupation, an individual is not required to find employment in a different field even if she or he can perform other tasks that are not related to her or his own occupation.  For example, a dentist would not be required to work as a clerk even if she or he can sit at a desk and use a computer.

Any Occupation

As mentioned above, most insurance policies provide a change in the definition of total disability 24 months after the end of the elimination period.  In order to continue to receive LTD benefits, an individual will be required to show that she or he is unable to perform the regular duties of any occupation.  It will be important to refer to the terms of the insurance policy as any occupation may be further defined with additional language.  Often policies will refer to any occupation for which an individual is reasonably qualified based on education, training or experience, or any occupation for which an individual may reasonably become qualified by education, training or experience.  At this point, an individual may no longer qualify for LTD benefits if she or he can perform duties of another position for which they are qualified or can become qualified. For example, if the dentist could no longer physically work as a dentist, he or she may be qualified and able to teach courses.

If you are unable to work and are applying for LTD benefits or if your benefits have been denied or have been terminated, please contact an experienced long-term disability lawyer for advice.

We are here to help navigate the LTD application process. Consult one of our experienced disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

If you’ve settled, or are in the process of settling, a legal case against your employer, you may have been asked to agree to what lawyers call a “non-disparagement clause”. These clauses come in many different forms but at their core, they all ask the individual employee to agree, going forward, not to “disparage” their employer or former employer. In fact, some go further and also prohibit individuals from disparaging other employees who are also employed by the employer.

But what does a non-disparagement clause actually mean, and what does an employee give up by agreeing to one?

What is Disparagement?

On their face, non-disparagement clauses look severe. “To disparage” means to criticize or belittle someone or something or to represent them as being of little worth. Put simply, it means saying, doing, or writing something about someone that could cause a third-party to view that person in a negative way.

Disparagement is a lower standard than defamation. While defamation requires someone to have said something false and damaging, disparagement can also capture something that is true but still damaging.

Non-disparagement clauses can also apply to indirect actions, such as where an individual who has signed a non-disparagement agreement encourages someone else to make disparaging statements. Even statements made in later lawsuits have, in some cases, been found to be a breach of a prior non-disparagement agreement (see e.g. Antoncic v Ontario (Community Safety and Correctional Services)).

Limitations on Non-Disparagement Clauses

There are limits to non-disparagement clauses, however. An obvious but important limit is that non-disparagement clauses do not cover statements made before the clause was agreed to. This can be particularly important when the clause is agreed to as part of a settlement at the end of a long, combative legal fight, where both parties have likely already made negative statements about each other.

Another key limitation is that purely factual statements have often been found not to equal disparagement. For example, in Ibrahim v Hilton Toronto Hotel, the Human Rights Tribunal of Ontario found that a statement that an employee “lost his [human rights] case and did not receive a penny” was an incorrect summary of what had happened in the employee’s case but did not actually disparage the employee.

Other similar decisions have found that simply saying that a case was settled or that one person had sued another does not amount to disparagement. These decisions indicate that, where statements are factual and do not inherently imply anything negative about a party, they do not result in the breach of a non-disparagement clause.

The Cost of a Breach

Even though there are limits, once you agree to a non-disparagement clause, it is important to be careful to avoid violating that agreement. If a clause is breached, a decision-maker will often have the power to enforce the non-disparagement clause and award a remedy to the other party for the breach.

Many non-disparagement clauses will identify a specific penalty for a violation, such as returning any money that has been paid to you as part of the settlement.

Where no specific penalty is identified or where no money has been paid, a decision-maker will typically award general damages for the harm caused by the breach. The amount of damages will be determined on a case-by-case basis and will depend on the level of harm caused to the opposing party. In cases where no real harm has been caused, decision-makers have still awarded damages for the breach of the settlement agreement itself.

Conclusion

Although there are limits on what qualifies as “disparagement”, employees should think carefully when deciding whether to agree to a non-disparagement provision in a settlement. While these clauses will not harm employees in many cases, they will impact what employees can say about their employers or former employers, and it is important to fully understand that impact before signing off.

Where possible, employees should consider getting legal advice before agreeing to a non-disparagement clause or before taking any steps that they are worried might breach an existing clause. An employment lawyer may be able to help you negotiate different language for a non-disparagement provision or guide you on how to avoid an unintended breach.

News publications have officially declared the “death of the office”, as most of us adjust to the realities of working from home. While working from home, often referred to as telework or telecommuting, had been steadily increasing in recent years, the amount of people working from home has obviously exploded in response to the COVID-19 pandemic. With unprecedented numbers of employees working from somewhere other than their employer’s physical premises, an important question arises: if you are injured while working at home, is that injury covered by workers’ compensation?

Surprisingly, given how common telework has become, the Ontario Workplace Safety and Insurance Board has not published a formal policy addressing injuries that arise while working at home. However, WSIB’s general law and policy, as well as its few cases adjudicating claims for telework injuries, confirm that an injury sustained while working at home will be treated like any other injury—all the circumstances will be considered to determine if the injury is work-related.

Ontario’s workers’ compensation legislation, the Workplace Safety and Insurance Act, only allows for compensation for accidents that occur on an employer’s premises. However, that term is defined very broadly, as “ the building, plant, or location in which the worker is entitled to be…” To be eligible for compensation, an accident must also have occurred while the worker was performing an act incidental to her work or employment obligations.

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated very few claims for injuries sustained during telework. However, in the few cases it has decided, it has effectively taken for granted that a telework injury is not excluded from the workers’ compensation regime.

The WSIAT has granted compensation to workers who were injured in their home offices. For example, in 2019 ONWSIAT 1873, a customer service worker performed her job in her home office and developed carpal tunnel syndrome due to an increased workload. The WSIAT found that the claim had the necessary five points to be eligible for compensation: “an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history.”

This is similar to the approach taken by workers’ compensation boards in other jurisdictions. Some, like WorkSafeNB in New Brunswick, and the Workers’ Compensation Board – Alberta, have published policies or fact sheets specifically addressing when a telework injury will be considered eligible for benefits.

While telework injuries clearly can be eligible for workers’ compensation, the fact that your injury occurred while working from home may, in some cases, make it more difficult to establish that the injury is work-related. There are a wide variety of situations that are on the borderline between work and personal activities. That line between your work and personal life is likely even harder to define when you are working at home.

The Workers Compensation Appeals Tribunal of British Columbia commented on this difficulty in a 2010 decision:

…work activities and home life do not always occur in a clearly defined and distinct sequence.  It might be that a worker is at one moment in the course of employment while in the home office, but at another moment in the role of homeowner when responding to a neighbor knocking at the front door.  It is where an injury occurs in the transition between work life and personal life that coverage under the Act may be at its most complex.

So, while the fact that your injury occurred while working from home does not, in itself, disqualify you from workers’ compensation coverage, you may face added challenges in your claim, particularly if the injury occurred somewhere in that “transition” between your work life and your personal life. If you have such a borderline claim, you may want to receive advice and assistance from an employment lawyer.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

A federal employer is required to appoint a competent person to investigate a workplace violence complaint, even if it believes the allegations in the complaint do not relate to or amount to workplace violence, according to a recent decision the Occupational Health and Safety Tribunal of Canada.

In this case, the worker had suffered through an accommodation process that he felt was inadequate. He believed that representatives of the employer, the Canada Food Inspection Agency, were deliberately holding up the process and interfering with accommodations granted to him in order to cause him harm. He also made general claims about bullying and harassment and alleged that employer representatives had raised their voices with him.

After meeting with the worker, the employer concluded that his complaint was not actually about workplace violence and decided not to appoint a competent person. Before the Tribunal, it argued that the employer could exercise a screening function and did not have to appoint an independent investigator to look into workplace violence claims that it felt were obviously unsupportable.

The Tribunal rejected this argument and confirmed that the employer’s role in a workplace violence process is limited to trying to facilitate a resolution of the complaint. Where that is not possible, the appointment of a competent person is required unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence.

In the case before it, the Tribunal noted that it was enough that the worker’s complaints themselves explicitly referred to “workplace violence”. This language made it clear that the complaints “related to” workplace violence. The Tribunal also concluded that it was not plain and obvious that no finding of violence could ever be made if the worker’s allegations were investigated. The employer was therefore required to appoint an investigator.

This decision is further confirmation that the employer’s role in a workplace violence complaint is limited to attempting to facilitate resolution. The employer does not have any screening function and cannot examine the factual allegations in the complaint to determine if they can be proven. If the complaint cannot be resolved at an early stage, a competent, independent investigator must be appointed.

The Public Service Alliance of Canada was represented by Jessica Greenwood, with assistance from Zachary Rodgers.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Emily McBain-Ashfield.

Asked to work but feeling ill? Your job is protected

As some regions in Ontario enter Phase 2 of re-opening, more people will be asked to return to work. If you are one of those people being asked to return to work, you may be wondering: what will happen to my job if I feel sick, but do not have any sick days?

Even without sick days, your employer cannot fire you for taking a leave due to COVID-19 related symptoms. You do not have to choose between following public health guidelines when you feel ill and keeping your job.

COVID-19 Related Emergency Leave Without Pay

Whether you work in a provincially or federally regulated industry, workers in Ontario have access to job-protected COVID-19 related leave.

Under the Employment Standards Act, 2000 (ESA), provincially regulated workers can take leave without pay if they are isolating because they have, or are suspected to have, COVID-19. Furthermore, employees can use this leave to care for others with suspected or confirmed COVID-19. Once you return to work, your employer must reinstate you to the same position with the same pay as before you took leave.

You do not need to provide a medical certificate to take COVID-19 related leave under the ESA. However, your employer can require evidence that you qualify for leave, as long as the request is reasonable in the circumstances and at the time of the leave. For example, as testing in Ontario becomes more accessible, asking for evidence of COVID-19 testing may become more reasonable.

Federally regulated employees also have job protected leave for up to 16 weeks under the Canada Labour Code (CLC) if they cannot work because of COVID-19. You must notify your employer as soon as possible about the leave, including the expected length of leave. You do not need a medical certificate to take COVID-19 related leave under the CLC.

Your job is further protected under the Human Rights Code

Disability is a protected ground under the Human Rights Code and your employer cannot discriminate against you because of a disability. The Ontario Human Rights Commission considers COVID-19 status as a protected ground under disability.  This means is you cannot be fired because of your COVID-19 status, up to the point of undue hardship on your employer. In addition, the need to care for ill family members engages the protected ground of family status. So, you cannot be fired for taking leave to care for a family member. Unless your employer can demonstrate that accommodating you causes undue hardship, your employer must accommodate you by either providing leave or an alternative working arrangement.

How will I afford unpaid leave?

Currently, your employer does not have to pay for sick or COVID-19 related leave. The Federal Government recently announced they are discussing with provinces the possibility of giving workers 10 paid sick days. However, access to 10 paid sick days is not going to happen overnight, and each province may respond differently.

If you need to take a COVID-19 related leave you have some options to receive support. You may be eligible to apply for the Canada Emergency Response Benefit or EI Sickness Benefits.

We are here to help you navigate workplace issues. Consult one of our experienced lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are facing difficulty in your workplace due to taking COVID-19 leave.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Men who grew a beard during the pandemic while working from home or out of work may be asked to shave it off when they re-enter the workplace. Whether your boss can force you to shave your facial hair depends on the type of work you do, your personal circumstances, and, in many instances, whether you are unionized.

Is your employer concerned about safety or appearance?

Employers have policies against facial hair for different reasons. One is for health and safety. An employer is required by law — in Ontario, the Occupational Health and Safety Act — to protect workers from harm, including from exposure to respiratory hazards like fumes, gases or biological contaminants. Some job duties require workers to use a respirator that only fits properly if the person wearing it is clean shaven. Performing these duties safely requires a clean shave.

On the other hand, some employers are simply concerned about appearance. They may have a dress code or grooming policy that prohibits beards or other styles of facial hair for the sake of its business image. A worker’s performance is no different with or without the beard.

In either case, men who experimented with facial hair during the coronavirus lockdown may have little choice but to shave if they want to keep their job.

Do you have a right to facial hair?

Facial hair can engage a worker’s human rights, in certain circumstances. Human rights law — in Ontario, the Human Rights Code — prohibits discrimination on certain listed grounds that include a person’s creed or religion, disability, sex and gender expression.

Facial hair can be protected on the basis of creed or religion. A worker whose beard represents a sincerely held religious belief, such as that held by members of the Sikh faith, is entitled to accommodation by their employer unless it would cause the employer undue hardship. A legitimate safety concern, where employees would be endangered if a bearded person is allowed to work without a properly fitted respirator, is an example of undue hardship. The factors for determining undue hardship, in addition to health and safety, depend on the circumstances of each case. It is well-established, however,  that it is discriminatory for an employer to refuse to hire a person who wears a beard for religious reasons because the employer believes its clients would prefer clean-shaven employees.

The term creed in the Ontario Code may be broad enough to include protection of deeply held non-religious belief system, but there are so far no cases involving facial hair as a practice associated with one.

Facial hair can also be protected on the basis of disability. A worker with proven medical restrictions, which could possibly include a dermatological condition that is irritated by shaving, is also entitled to accommodation to the point of undue hardship on the basis of disability. An employer is not entitled to ask for a diagnosis but can expect to receive enough information from a medical practitioner to fulfill its duty to accommodate the employee’s restrictions.

Otherwise the decision to grow a particular type of facial hair has not been found to be a protected right on the basis of sex or gender expression, the Human Rights Tribunal of Ontario ruled in Browne v Sudbury Integrated Nickel Operations. In that case, the worker, who grew a moustache and goatee to support the “Movember movement,” argued that his employer’s “clean shaven policy,” which only permitted a moustache and soul patch for safety reasons relating to mask-fitting, was discriminatory. But according to the Tribunal, “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation” on the basis of sex.

It was also not protected on the basis of gender expression or gender identity. These grounds were added to the Code to address a perceived gap in the rights of transgender and gender non-conforming persons, not to protect the right of cisgender men to grow beards. The Tribunal found nothing to indicate “bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.”

It would remain open to transgender or gender non-conforming persons to seek accommodation for the wearing of facial hair on the basis of gender expression and gender identity, if an employer’s policy impeded grooming according to their expressed gender.

Human rights can be a complex area of law that turns on the unique aspects of each case. Workers who have questions about their workplace rights should speak to a lawyer or access community resources, like the Ontario Human Rights Legal Support Centre.

Is your workplace unionized?

Unionized workers have a greater ability to challenge employer policies than non-union workers. Their terms and conditions of employment are governed by a collective agreement that entitles the union to present grievances concerning workplace disputes to be heard by a labour arbitrator. The union generally has the power to challenge the reasonableness of employer policies, including grooming policies that restrict styles of facial hair.

In deciding whether a policy is reasonable, an arbitrator will consider if the employer has a legitimate business interest that justifies interfering with the right of employees to express themselves through their personal appearance. There are many arbitral cases dealing with dress codes and grooming standards.

In one case, Waterloo Regional Police Services Board (1999), 85 LAC (4th) 227, the arbitrator found there was no legitimate rationale for the police service to prohibit men from wearing beards on duty, except for religious or medical reasons. The employer was unable to produce any objective evidence that a beard was inconsistent with the image the employer wished to project. The arbitrator noted that it would be reasonable for the employer to regulate the appearance and maintenance of beards but was unable to justify banning them outright.

In another, Zehrs Markets Inc. (2003), 116 LAC (4th) 216, the arbitrator found that the employer’s policy that the required the grievors to shave their goatees or wear beard nets was unreasonable. There was no evidence that the goatees cause any health and safety issues, like food contamination, or that the absence of beard nets over facial hair affected the grocery store’s image with customers.

In other cases, such as Ottawa Hospital v Canadian Union of Public Employees, Local 4000, 2013 CanLII 643, arbitrators have similarly found that employer bans on facial piercings and clothing that exposed tattoos were unreasonable as they served no legitimate employer interests.

Workers should contact their union representatives if they have any questions about their employer’s grooming policies.

That doesn’t seem like a shocking proposition, but Uber fought up to the Supreme Court of Canada to argue Canadian courts had no jurisdiction to determine whether it had acted improperly. The Supreme Court of Canada said Uber was wrong. Now a major class action on behalf of drivers can go ahead.

Uber thought it had covered itself when it required drivers to agree that they had to make any claims by going to an arbitration in Europe, leaving them with no access to justice through Canadian courts. A strong majority decision of the Supreme Court of Canada rejected that argument and said the clause was unenforceable.

It said that the clause was unconscionable.

The Court held that the idea of going to arbitration, rather than the courts, is acceptable when it is freely negotiated between the parties.  Where unfair bargains are linked to unfair bargaining, however, the courts can protect vulnerable people in the agreements they are given to sign. The courts will look to whether one party to a deal was unable to protect their interests when the person agreed to the terms. The Supreme Court also said Canadian courts can intervene where one party is disadvantaged by terms they did not understand or appreciate. Not every standard contract can be ignored by the courts, but when they are hard to understand and lopsidedly in favour of one party, there is a good chance that some of their terms can’t be enforced.

In the Uber case, a driver would have been required to pay an up-front US$14,500 administration fee just to start the arbitration process.  For the driver in question, that was a sizeable percentage of the amount he earned in a year.  He would have to use the law of the Netherlands and was left with the impression he would have to go to Amsterdam to argue his case.  The Court found that the arbitration clause made any of the driver’s rights unenforceable in the real world.

As a result, the Court said Uber drivers can make their claims in Canadian courts. A proposed $400M claim involving the misclassification of Uber drivers can finally now proceed.

It’s not unusual for Long Term Disability (LTD) benefits to be denied, and there are various reasons why this may happen. Below are the top five reasons why Long Term Disability benefits are denied to those who are either mentally or physically unable to work.

1. Insufficient medical evidence

LTD denials by the insurance company can happen at the beginning of the application process because the applicant or the applicant’s doctor filled out the required forms incorrectly or inadequately. Despite the fact that you and your doctor have filled out the required forms and provided access to your medical file, the insurance company may deny your LTD benefit because the medical documents do not support your claim. Unfortunately, the insurance company is unlikely to explain why or where the documents are lacking. 

From our experience, doctors often fail to explain in enough detail why the patient’s symptoms are a barrier to performing the duties of their existing job or some alternative employment. It is advised that both you, as the applicant, and your physician clearly outline why you cannot work and explain how your medical condition prevents you from working. This will include such information as the frequency and intensity of the medical symptoms. 

If you are denied because the medical documents do not support your claim, you will have the opportunity to provide more information to the insurer. With the support of your family doctor or other treating physician, you can provide additional evidence to support your claim. The insurance company will typically give more weight to the opinion of a specialist than a family physician. You can also get the assistance of an LTD lawyer to complete the required forms. 

If you are turned down a second time, you will likely have to initiate an appeal process and sue the insurer.

2. You do not meet the policy’s definition of total disability

Each LTD insurance policy defines what it means to be “totally disabled.” At first glance, it might seem like an insurmountable threshold to attain but usually, in the first two years, it means that a person is unable to perform the usual duties and responsibilities of their own occupation. 

If you are unable to do your job, make sure to indicate total disability on the form. If you answer on the form that you do not meet the definition of total disability, the insurance company will interpret your response as an agreement you are able to work. 

If you have filled out the form incorrectly, but your treating physician’s opinion is that you cannot work, you can contest the denial of benefits.

3. You can work in another occupation

After two years, the definition of “total disability” often changes, and the insurance company takes the position that an individual is disabled only if they cannot work in any occupation. It is at this time that many individuals who are in receipt of LTD benefits are cut off If your physician continues to advise that you cannot work in any occupation, you can use that as evidence that you should continue to receive benefits. If the insurance company rejects that medical opinion, you can contest the decision to deny your LTD benefits. 

4. You have an excluded or pre-existing medical condition

Some insurance policies may exclude certain conditions, deny coverage for pre-existing medical conditions, or have a waiting period for claims due to a pre-existing medical condition. It is important to review the policy to see if and when you are covered for pre-existing medical conditions. If you are denied coverage due to a non-disclosed pre-existing condition,  depending on the context it may be worthwhile to initiate an appeal.

5. Lack of objective medical evidence

Individuals with invisible disabilities such as mental health conditions, fibromyalgia, chronic pain, and chronic fatigue syndrome are often denied due to a lack of so-called objective medical evidence. These diagnoses are often based on self-reported symptoms and their effect on daily living. Insurance companies often deny these claims because there is no official test or diagnostic image to confirm the existence of the illness or disease. Despite the lack of an official test or diagnostic, a denial of LTD benefits in these circumstances can be contested.

If any of the above reasons are cited in the decision to deny or stop paying your LTD benefits, we strongly recommend you contact a lawyer in order to discuss the next steps.

Note: This article is for informational purposes only and does not constitute legal advice, which requires an assessment of your individual circumstances.]