Can I Be Fired If I’m on Disability?

Human rights law and employment laws offer protections for employees in British Columbia who take time off work because of a disability or illness.

Employers are required to accommodate a worker’s disability, but if the condition prevents an employee from performing their duties over an extended period of time, the employer may be tempted to end the employment relationship. This raises the question of whether you can be fired while on disability?

With a few exceptions, yes, an employer has the right to terminate your working relationship even if you’re on disability or medical leave. However, if the employer violates their duties under British Columbia employment law or the Human Rights Code, workers may be eligible to file a complaint with the assistance of a personal injury lawyer who specializes in disability claims.

Duty to accommodate disabled employees

Under the Human Rights Code, all employers are obligated to accommodate an employee’s disability, even if it causes some degree of hardship. Depending on your specific work contract and environment, employers are expected to make “reasonable” accommodations such as:

  • Allowing breaks and absences
  • Identifying a more suitable position
  • Altering the work environment
  • Providing alternate work assignments
  • Offering technical aids

Frustration of contract

However, if your disability is long-term and it seems the prospect of returning to your job is unlikely, your employer may terminate your position with just cause, as long as it can be demonstrated that you were not discriminated against based on your disability.

Disability includes any unintentional physical or mental condition that has some measure of permanence.

An employer may contend that the employment contract has been “frustrated” by the employee’s ongoing incapacity for the foreseeable future, thus warranting a dismissal. In this context, it would be unreasonable for the employer to continue waiting for the worker to recover their health and resume normal occupational duties. A frustration of contract allows both employee and employer to be released from the obligations set forth in the employment agreement.

However, in situations where an employment contract allowed for long-term disability benefits, it may be argued that a “frustration of contract” isn’t a valid basis for termination. In fact, some courts have ruled that contracts cannot be “frustrated” if they considered long-term disability in the first place.

Even if an employment contract is frustrated, the employee is entitled to the minimum notice period as well as limited severance pay.

Other provisions for termination

While being fired because of a disability is unlawful, employers do have the right to dismiss employees out on disability under the following circumstances:

  • The employer is shutting down or restructuring its workforce due to financial reasons
  • The employer is concerned that the employee’s mental disability poses a threat to other workers
  • The employee refuses to adhere to regular medical examinations, to track their health and progress
  • The employee engages in unsafe behaviour or violates the employer’s code of ethics

Employees with a long-term disability are encouraged to communicate with their employers and provide evidence if they can perform alternate duties or functions.

If terminated while on disability, employees should determine whether accommodation was requisite and not provided, and then consult with a disability lawyer.

Preszler Law can protect your rights

If you have questions about your rights under BC employment and human rights law, or feel you were wrongfully terminated and discriminated against, contact Preszler Law for a free consultation. We are an established long term disability law firm that represents clients throughout British Columbia.

Our goal is to provide our clients with sound legal guidance that gets positive results. Protect your rights and optimize your chances of success by partnering with Preszler Law Firm.

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