On February 9, 2021, Alison McEwen will be speaking as part of the Lancaster House’s program “Understanding and Implementing Bill C-65”. Alison will be discussing the changes to workplace violence and harassment laws in federal workplaces, including the new obligations on employers, the impact on unions, and the supports available for employees affected by violence or harassment.

For more information or to register, please see Lancaster House’s website.

Sean McGee was recently interviewed on the evolving story around harassment allegations in the Governor General’s office, under former governor general Julie Payette. Sean provided his insights on the application of the federal government’s directives on workplace harassment and the types of remedies often available for employees who have experienced harassment.

The interview with the CBC was published in January 2021 and can be found on the CBC’s website.

There is a common misconception that contracting COVID-19 automatically results in eligibility for long-term disability benefits. Unfortunately, this is not the case, and only in specific circumstances relative to an individual’s limitations and restrictions would filing a claim be appropriate. Today, we will find out why that is and provide information to help you determine your eligibility for long-term disability benefits, otherwise known as LTD.

Elimination Period

The first factor to consider is the elimination period or the amount of time an employee must wait between the first day they are unable to work due to illness or injury and the first day they are eligible to receive LTD benefits. The elimination period varies depending on your LTD policy. During this period, the individual must continuously be unable to work because of their disability. The employee may be required to use all remaining sick days or apply for short term disability benefits during this period of time. Before applying, carefully examine the policy booklet provided by your employer. Ensure it’s the latest version, as updates to qualifying terms and conditions could either simplify or complicate matters further.

Definition of Disability 

The second factor to consider is the definition of disability as set out in your benefits policy. In order to be eligible for LTD benefits, the individual applying must meet the definition of disability as set out in the policy. These vary slightly depending on the insurance company. However, there are usually two key timeframes to bear in mind when considering your application. The first, which usually applies for the first 24 months after the end of the elimination period, is to prove that you cannot perform your own occupation because of the injury or illness. After 24 months, the employee must demonstrate that they cannot perform the duties of any occupation because of the injury or illness in question. 

Causes of Rejection for LTD Benefits

As covered in our May post on this particular subject, there are five common reasons why you may be denied LTD benefits: 

1. Insufficient medical evidence to back your claim;
2. You do not qualify as per your workplace’s current long-term disability policy;
3. You are capable of securing employment in another occupation, whether in your field or otherwise;
4. Your employer’s insurance policy excludes specific conditions, potentially preexisting in nature;
5. A lack of “objective medical evidence” – a common hardship faced by those living with chronic fatigue syndrome, fibromyalgia or mental health conditions.

In addition, late applicants who miss the deadline may be ineligible, which can result in a stressful and economically frustrating experience. Always ensure you apply before the posted deadline to avoid this needless complication. While there may be steps available to you to secure your benefits, they involve lengthy court proceedings that are best avoided.

Why Securing LTD Compensation for COVID-19 is Difficult

In consideration of these aforementioned LTD eligibility specifics, claiming LTD benefits as a result of COVID-19 would be difficult because you must be able to demonstrate that, after the elimination period and during the first two years, your ongoing symptoms of COVID-19 restrict and limit you from performing the duties of your occupation. A COVID-19 LTD claim would only be successful in instances where your symptoms are severe enough to prevent you from working in your own job. That said, if your LTD benefits have been denied, whether in relation to COVID-19 symptoms or another injury or illness, there are extra steps you can take in an attempt to pursue them further. We have covered them in detail here and would be happy to assist with any questions you may have. 

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

In a recent grievance decision between the Limestone District School Board and CUPE Local 1480, Arbitrator Jesse Nyman found that changing a bargaining unit member’s work location may eliminate a position and create a vacancy, triggering the mandatory posting provisions of a collective agreement.

In 2013, the Employer decided to close two of its secondary schools in Kingston, Ontario and to construct a new secondary school. The grievance began when the Employer announced its intention to unilaterally transfer staff from one of the old schools to the new school when it opened.

At arbitration, the Union argued that, when an old school closes, the positions at that school cease to exist and when the new school opens, vacancies will be created that must be posted and filled in accordance with the posting and seniority provisions of the parties’ collective agreements. The Employer defended its intention to simply transfer staff from one school to another by arguing that there were no vacancies created, only a change in work location, and therefore no provisions of the collective agreements applied.

In his decision, the Arbitrator agreed with the Union’s position that the shutting down of the old schools and opening of the new school was a “school closure” within the meaning of the collective agreement. The Arbitrator also accepted the Union’s argument that the collective agreements prohibited the Employer from unilaterally transferring employees from one work location to another when a school closes. Rather, the posting provisions must be applied. The Arbitrator found that this interpretation was supported by the plain language of the agreements and the parties’ past practice regarding school-to-school transfers. The grievance was therefore allowed and the Board was ordered to post the new positions in accordance with the terms of the collective agreements.

This win for the Union highlights that a change of work location, depending on the language of the collective agreement, may trigger a vacancy that requires a position to be posted. This reinforces the importance of seniority rights for workers, which are almost always a key determinant in filling vacant positions.

The Union was represented by Julia Williams of RavenLaw.

On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.

RavenLaw is pleased to announce that one of its partners, Wassim Garzouzi, has been unanimously appointed as the President of the Canadian Association of Labour Lawyers (CALL) as of July 30, 2020. CALL is a voluntary organization comprised of approximately 600 lawyers who represent the labour movement across Canada. The Association endeavours to protect and advance the interests of workers in the forums where labour law is made and administered. Wassim’s presidency marks the first time that a Black, Indigenous, or Person of Colour has been named to the CALL executive since its founding in the late 1980s.

Wassim, who was previously elected to the role Regional Vice-President (Ontario), has been a member of CALL Council since 2016.

Congratulations to Wassim on his historic appointment!

On November 14, 2020, Sean McGee was inducted as a Fellow of the College of Labour and Employment Lawyers.

The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.

On September 24, 2020, RavenLaw hosted its fall LTD conference via video conference. The conference focused on long-term disability claims in the context of post-concussion syndrome and brain injuries.

The conference was attended by many union representatives of several federal public sector unions and by non-unionized employees. A neurological physiotherapist, Amaal Mirani of Lifemark Physiotherapy, provided a medical view on the fundamentals of concussions and post-concussion syndrome, their effects on the brain, and available treatments. Two guest speakers also shared their personal stories about dealing with post-concussion syndrome in both private and public sector employment, as well as their experiences pursuing claims against their insurance companies for long-term disability benefits.

Finally, James Cameron, Kim Patenaude, and Anna Lichty of RavenLaw provided a legal perspective on litigating long-term disability claims for clients with post-concussion syndrome and other brain injuries.

For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.

We are living in a different world.  Do not assume same-old is the same old.

A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit.  That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith.  If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago.  It is still good law.

Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade.  A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.

Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer.  Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.

The information may be significant, or there may not be much.  It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry.  In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.

This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.