Should you file for disability or seek accommodation? Read on

Disability Law /
Leanne Goldstein
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By Tony Poland, LegalMatters Staff • When an injury or illness prevents you from being able to adequately perform the duties of your job you may not know what to do next. Is it better to seek an accommodation from your employer or should you pursue a claim for disability benefits?

“The choice is not always clear,” says trauma-informed lawyer Leanne Goldstein, founder of Leanne Goldstein Law.

Goldstein and Toronto labour and employment lawyer Tatha Swann, founder of Swann Law, shared their insights in an attempt to eliminate the confusion.

Goldstein tells LegalMattersCanada.ca that “it depends largely upon your ability to sustain competitive employment with appropriate accommodations as well as the extent to which your duties and responsibilities and your hours of work will be eroded by the proposed accommodations.”

How do you decide?

“If you are unable to perform your occupational duties as effectively and efficiently as you were before an illness or injury, even after the employer has accommodated you, a disability claim may be the appropriate course of action,” she says. “For instance, individuals struggling with fatigue, chronic pain and emotional dysregulation may continue to struggle to perform their occupational duties even after the employer has modified their work hours, allowed for regular breaks or provided a work-from-home option.”

Swann says there are many factors to consider.

“From an employment law perspective, whether to seek accommodation versus disability will depend largely on whether you qualify for disability benefits under the insurer’s policy, how long you expect to suffer from the illness or injury and whether you believe you can and are able to meet the physical/mental burden to continue working in the long run,” she explains.

It is, of course, important to first consider the nature of the disability, says Goldstein.

“There is often a misconception about the extent of a disability required to pursue a claim,” she says. “Many people believe they have to be bedridden or completely incapacitated.”

However, Goldstein notes that according to the Supreme Court of Canada ruling in Paul Revere Life Insurance Co. v. Sucharov, the question is whether symptoms and functional limitations arising from an illness or injury are such that  “common care and prudence require the insured to desist from his business or occupation in order to effectuate a cure.”

Functionality must be taken into consideration

“You might be able to sit at a desk and answer a telephone even though you are in severe pain. But would you be able to function effectively in your job if your concentration and focus or your productivity are impacted by constant pain?” she asks.

Seeking an accommodation may seem like the right choice but it is important to consider that it could result in a significant reduction in hours of work and pay, which will have an impact if the decision is later made to file a disability claim, Goldstein warns. 

“If you continue to work reduced hours or on a part-time basis and your pay is reduced, you may be at a disadvantage when applying for disability benefits down the road,” she says. “When calculating benefits, insurers use a formula that is applied to the income you earned when the disability arose.” 

Goldstein explains that the date of disability for calculation purposes often correlates with the last day worked. 

“If income is reduced at that time, the benefit amount could be significantly lower than expected,” she says. “It should also be noted that the assessment of the claim might be based on an entirely new occupation, which could be very different in terms of job duties from the original occupation that an individual was performing before they were impacted by illness or injury.”

Some insurance policies may also require you to work a certain number of hours in order to even qualify for disability coverage, says Goldstein.

Never advised of the risk

 “I have received numerous calls from claimants over the years who reduced their positions to part-time or less, only to find that they were not covered under insurance when they submitted a claim,” she says. “They were never advised by their employers of this risk when they sought accommodation.” 

Many group insurance policies contain a dual definition of disability, Goldstein says. While every policy is different, typically the initial definition of disability in a long-term policy requires a person to be disabled from performing the essential duties of their occupation for the first 24 months, she explains.

“This is known as the ‘own occupation’ definition,” Goldstein says. “The test for disability typically changes after two years to whether the person is disabled from performing the essential duties of any gainful occupation for which they have the requisite education, training and work experience. 

“This is known as the ‘any occupation’ definition and the test often incorporates an analysis of whether an alternate occupation is gainful,” she adds.

Although definitions are policy specific, Goldstein says a typical definition of gainful occupation is “an occupation, including self-employment, that is or can be expected to provide you with an income equal to at least 60 percent of your indexed monthly earnings.” 

“That means if you are able to work in a different capacity from your previous occupation, even if it is on a part-time basis, you may not qualify for benefits under the ‘any occupation’ test,” she says. “Individuals who pursue accommodations in the workplace might find themselves denied disability benefits even though they continue to have a disability that impacts their ability to work.” 

Swann says that when deciding on whether to seek an accommodation or file a claim, qualification is the first consideration.

‘May not meet the insurer’s definition of disability’

“Your illness or injury may not meet the insurer’s definition of disability under the relevant policy,” she says. “However, you can still request accommodation to allow you to continue to perform your duties.”

Swann explains that accommodation is a modification of your duties or other work terms such as hours, or physical environment. It allows you to work, or at least perform the essential parts of your duties, despite your medical symptoms.”  

“If you believe you can qualify for disability benefits, you should be asking whether it is in your best interest to file a claim or continue to work with accommodations,” she says. “If you are on disability you can expect to receive only a fraction of your regular pay.”

In addition, while on disability, your employer typically still needs to cover your work, which means hiring, moving someone internally, or restructuring your role, Swann says. 

“Of course, sometimes no coverage is required, but this generally does not bode well as it may cause the employer to question your value if your duties don’t need to be performed by anyone while you are away,” she says.

Swann cautions that while you are entitled to various protected leaves, as well as your job back (or a comparable job) when you are ready to resume work, this “simply does not happen in many cases.”

May have to negotiate a severance package

“The workplace moves on. When you return there may be no job to return to, or you are offered another job you may not want, and you could be faced with negotiating a severance package,” she says.

“The primary risk of disability benefits, from an employment law perspective, is losing one’s job in the long run.” 

However, taking this risk simply may not be a choice, says Swann, if your employer cannot accommodate your medical condition.

“They may not be able to change the physical workplace, reduce the hours enough or modify the duties in a manner that allows you to continue working,” she says. “Under the Ontario Human Rights Code, an employer has a duty to accommodate up to the point of undue hardship. That may mean that accommodations are too costly financially or operationally for the employer to be required in a specific case.”

As well, there may not be any accommodations, even if the company could make them, that allow for continued work for medical reasons or because of the nature of the employee’s work, Swann says. 

‘Office job would have very different requirements’

“An office job would have very different requirements and flexible work arrangements than a factory job or a retail job,” she says.

Requesting an accommodation is not always a straightforward proposition, Swann notes, adding “the devil is in the details”.

“Sufficient medical information is necessary for the employer to understand your functional restrictions,” she says. “Doctors often need to be prompted and assisted in articulating their patient’s restrictions in a manner that will survive the employer’s scrutiny.”

Even with medical evidence and doctor’s recommendations, accommodations can be denied, says Swann. 

“That’s not necessarily the doctor’s fault. They are not trained in employment law and often do not have an understanding of their patient’s duties or their employer’s business,” she says. “Requesting an appropriate accommodation can take creativity and effort which doctors may not be inclined to employ when filling out the requisite forms. 

“The doctor may also demand only one specific accommodation when multiple options would better assist their patient and the employer in coming up with modifications that work for both parties,” Swann adds. 

Goldstein and Swann agree that whether deciding on accommodation, disability or both, achieving the desired outcome can be challenging for someone without the assistance of legal counsel.