Using job abandonment to fire disability claimants is unfair

By Tony Poland, LegalMatters Staff • Attempts by employers to use job abandonment to terminate long-term disability claimants is an unfair ploy that causes emotional distress and hardship, says trauma-informed long-term disability lawyer Leanne Goldstein.

“Some employers are trying to get rid of employees who are on disability under the guise of abandonment of employment,” says Goldstein, founder of Leanne Goldstein Law. “This practice is flying under the radar for the most part. Its use in this circumstance is unfair and legally problematic. Individuals on disability should not be deemed to have abandoned their jobs. It is inappropriate for employers to take that stance.”

Job abandonment typically occurs when it is clear that an employee has no intention of returning to the workplace, does not have a legitimate reason for being off work, such as a medical reason, and continuously fails to communicate with their employer, she tells LegalMattersCanada.ca.

If there is a pattern of unexcused or unauthorized absences, an employee may have effectively signalled their intention to quit even though they have not expressly resigned, says Goldstein.

Abandonment of employment allows the employer to terminate an employee for cause, effectively freeing them from paying severance monies to an employee, she explains.

Possible human rights violation

However, it is a ploy some employers will use to avoid the repercussions of a possible Ontario Human Rights Commission violation or wrongful dismissal, Goldstein says.

“In this scenario, an employee may have made a claim for short- or long-term disability benefits. The claim may have been denied at the outset or approved initially and then later terminated by the insurance company and the employee will be taking steps to dispute that denial or termination,” she says. “While that is going on, the employer starts to contact the employee, sending them constant requests for letters from their doctors and completion of functional ability evaluation forms. There can be incessant requests for this information.” 

Each time there is a request for doctors’ letters or completion of forms, the employee must pay out of pocket, says Goldstein. However, they may not be receiving their disability benefits and because they are off work, they are not earning an income. This creates incredible financial and emotional stress for the employee and especially for marginalized individuals who have little support systems to help them navigate this issue, she adds.

“Often these information requests are extensive and repetitive and the employee is overwhelmed by the volume and the costs of obtaining them,” says Goldstein. “If the employee does not comply with these constant demands for information or does not sufficiently respond to the employer while on disability, or fails to indicate when they are able to return to work, the employer may attempt to terminate that person’s employment due to alleged job abandonment.” 

Requests can add to stress

The pressure can be too much for someone already dealing with a disability and disputing the unfair denial or termination of a disability claim, she says.

“Instead of waiting to see how the employee’s disability claim evolves with the insurance company, the employer uses the opportunity to force a premature return to work or proceeds to terminate the employee for job abandonment,” Goldstein says. “Employees are stuck between a rock and a hard place. Many times, they don’t know how to navigate this process because it is just unduly onerous.”

She says employers who take this approach are essentially weaponizing requests for information to allow them to play the job abandonment card.

“And they do that because if they terminate somebody who is on disability, it could potentially be seen as a human rights violation if any part of the termination is associated with disability,” Goldstein says.

Requests by an employer for certain types of information could also be a violation of an employee’s privacy rights, she says.

‘No need to be filling out endless forms’

“The need for certain medical information when an employee is returning to work from a disability and is seeking accommodations from the employer is justified,” Goldstein says. “It is at that point that an employee should be communicating with the employer about their restrictions and limitations in order to facilitate the accommodations process. But, there really is no need to be filling out endless forms and getting repetitive doctors’ notes when they are on disability and actively pursuing a disability claim.

“There are a number of employees who love their jobs and are eager to return to work once they are medically able to do so,” she adds. “Accusing them inappropriately of job abandonment is emotionally distressing and discriminatory. Employers have an obligation under federal and provincial legislation to accommodate to the point of undue hardship once an employee has expressed an ability and desire to attempt a return to the workplace. Terminating their employment prematurely robs them of that opportunity and that right.” 

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Goldstein says employers must meet a high threshold when using abandonment of employment as termination for cause.

The standard is set out by the Ontario Superior Court of Justice in Betts v. IBM Canada Ltd.
“While an actual resignation must be clear and unequivocal, the test for abandonment is similar to the test for resignation: do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract,” the court stated.

Employers attempting to use job abandonment to terminate employees on disability fail to meet that threshold simply because it is not that people no longer want to work for the company, it is because they are unable to at that moment in time due to medical reasons, Goldstein says. 

‘Simply attempting to shift blame to the employee’

“However, what is happening is these employees are being told they have abandoned their jobs and, unfortunately, many believe that the company must be correct,” she says. “On closer examination, it is clear that the factual circumstances do not fit into what a job abandonment actually is and the employer is simply attempting to shift blame to the employee.”

“When you are on a disability leave you are absent from work for a reason,” Goldstein adds. “There is a very different set of circumstances that is going to attract a job abandonment description.”

She says while the employer is legally bound to accommodate a worker before deeming the employment as abandoned, both the company and the employee have responsibilities. 

“The employee must be given extensive opportunities to participate in the accommodation process,” Goldstein says. “However, if an employee is absent from work without any medical justification and fails to communicate with their employer or attend appointments or meetings without an excuse, the case could be made for job abandonment,” she adds.

Consequences beyond job loss

Being terminated for job abandonment has some unfortunate consequences beyond job loss for those employees who may have been willing and able to return to work in the future, says Goldstein, explaining that because that person has been deemed to have resigned it may impact their ability to get Employment Insurance (EI).

“They may already be in a precarious financial situation with the denial or termination of their disability benefits claim and now they are not eligible for EI benefits, severance or notice of termination pay,” she says. Goldstein says disability claimants who are fighting the denial or termination of their disability benefits claim and are being contacted by their employer for endless medical notes and forms or have been deemed to have abandoned their jobs, should seek legal advice.

“Individuals need to understand that this is not necessarily in accordance with what job abandonment is or what the law states is right,” she says. “It is merely the employer exerting force over the employee. They should not be allowed to simply close the door on these workers. It is unfair and a violation of their rights.”