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Legal questions: Quebec

Anastasios Kouros, business attorney at Delegatus Services Juridiques, Inc

Mr. Anastasios Kouros is a business attorney broadly grounded in commercial transactions at the global and national levels. With over 13 years of experience, he drafts and negotiates commercial agreements (notably supply chain and information-technology agreements). Mr. Kouros also performs risk assessments and business analyses, develops and implements policies. He drafts agreements for research and development and intellectual property and manages internal and external lawyers in different jurisdictions for global projects.

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The following information is relevant to employees working in provincially regulated industries in Quebec. This information does not apply to employees who work in federally regulated industries.

The information provided below is intended as general information. It is important to seek independent legal advice when you have questions regarding your individual rights as an employee and your rights as an individual affected by cancer.

Note: This information applies primarily to residents of Quebec. For other provinces, consult legal questions: Canada.

Questions list:


Job interview

Do I need to disclose that I have cancer in a job interview?

Under Quebec law, you are under no obligation to disclose a medical condition. However, if you have to complete a medical questionnaire during the hiring process, you must be honest with your answers and disclose your medical condition.

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During an interview, must I disclose that I will need to take time off for medical appointments or my need for accommodation?

No, you are not required to do so as it can be used to discriminate against you in the hiring process. However, certain jobs require that you pass a medical examination after you have been selected due to certain safety requirements related to the job.

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During an interview, am I obligated to disclose my need for accommodation?

No, you are not required to do so.

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When hired

Can an employer demand that I work overtime? What if I cannot do overtime because of my cancer?

Yes. If supported by a medical certificate from your physician, you can be exempt from working overtime.

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As a new employee, do I have to pay accommodation costs?

No. The costs of accommodation are born by your employer up to “unreasonable hardship.” Your employer must accommodate you but they are not required to do so if it causes undue hardship for the company. Undue hardship has been described as having a significant economic or organizational impact on the company. This depends notably on the size of the company or the nature of the position of the employee.

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Employment

What is my obligation to inform my employer of my cancer?

You are not obligated to inform your employer that you have cancer. You may need to do so if you need a form of accommodation at work or need to take time off from work in excess of the company’s policy on personal leaves, short term disability and long term disability policies.

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What is my employer entitled to know?

In all cases of an extended absence, you must notify your employer as soon as possible of your absence and the reasons for it. Your employer may require a medical certificate signed by your physician and containing the following information:

  1. Reason for your absence
  2. The duration of your absence
  3. Your treatments

Upon your return to work and if you need special accommodations, your employer may require from your physician specifications on your condition in order to understand fully how they can accommodate you.

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Is my employer legally bound to keep information regarding my condition confidential?

Yes. The information will only be accessed by people required to know such as you Short and Long Term disability provider and any personnel in H.R. or Manager required to know in order to put in place any reasonable accommodation requirements.

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What am I entitled to keep confidential?

You are not obligated to disclose any facts related to your condition. You may choose to do so if requesting a reasonable accommodation or to benefit from your employer’s short-term or long-term disability programs.

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What can I do if colleagues harass me because of my cancer or because I can’t perform at my pre-cancer level?

Harassment of any form is unacceptable in the workplace. If you feel that you are being harassed in your workplace, you should discuss the situation with your supervisor or with your HR representative. It is the responsibility of your employer to prevent and to stop any type of harassment in the workplace. For more information on the subject of harassment in the workplace, you can visit the website of the Labour Standards, Pay Equity and Health and Safety Commission.

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Can I lose my job because I have cancer?

Your employer cannot terminate your employment based on the fact that you have cancer. If you have 3 months of uninterrupted service with the same employer, you may be absent from work, without pay for up to 26 weeks per 12-month period for sick leave. Prior to acquiring three months of continuous service with the same employer, you should consult your employer’s policy on leave. However, you could lose your job if you are not able to perform the essential functions of your job and a reasonable accommodation is not possible with your employer.

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Can I lose my job because I need time off during my work hours for medical care?

No, as long as it is justified by a medical certificate provided by your doctor. If your employer knows that you have a medical condition, they cannot terminate your employment based on the fact that you need to take time off. They may require that you first avail yourself of your personal days and your sick days and then can benefit from your employer’s short term and then long term disability program.

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Time off work

What information is an employer entitled to know when I request time off due to my cancer?

In all cases of an extended absence, you must notify your employer as soon as possible of your absence and the reasons for it. Your employer may require a medical certificate signed by your physician and containing the following information:

  1. Reason for your absence
  2. The duration of your absence
  3. Your treatments

Upon your return to work and if you need special accommodations, your employer may require from your physician specifications on your condition in order to understand fully how they can accommodate you.

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What can I do if a superior calls me during my sick leave and asks me to do work?

If you have a properly approved sick-leave, you do not have to do any work or return earlier than what your doctor has indicated.

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What can I do if a superior calls me during my sick leave and asks me to return early from my leave?

See previous answer.

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Can I be laid off while I am on sick leave or long-term disability?

You cannot be laid off because you are on short-term disability or long-term disability. However, you can be laid-off if it is based on commercial reasons that are not related to the fact that you or on sick-leave or have cancer. An employer has the right to restructure its business and thus lay-off employees as long as the decision cannot be made on the fact that you have cancer. To do so would be discrimination. Being on sick-leave or long-term disability does not make you immune to a lay-off.

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Can I still collect long-term disability if I am laid off from my job? If so, for how long?

Your eligibility and right to long-term disability depends on your employer’s long-term disability plan. It is best you consult your HR department and your insurance provider for the specific terms and conditions of your plan.

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How long is my employer obligated to keep my job open and available for me?

An employer is obligated to keep your job open and available up until they experience undue hardship or it has been medically determined that you will not be capable of returning to work and performing your duties. The definition of undue hardship depends on many factors including the nature of your job, the size of the company, its financial standing etc. Your employer has no obligation to put you back in the same position if they are experiencing undue hardship and has the right to offer you a similar position.

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At what point does my time off amount to frustrating the employment agreement?

There is no exact rule in the applicable laws but many decision makers have demonstrated that they will exercise restraint before opining that an employee’s absence amounts to frustrating the contract of employment. Depending on the nature of the job and the type of company you can be off of work for years and still not frustrate the contract of employment. Only when it has been medically determined that there is no likelihood that the employee will return to his original position and cannot be reasonably accommodated will the contract of employment be frustrated.

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What if I am ready to return to work but my employer says there is no job available?

As previously mentioned, your employer is obligated to keep your job open and available up until they experience undue hardship or it has been medically determined that you will not be capable of returning to work and performing your duties. It is possible that for reasons unrelated to your medical condition, your position does not exist anymore. In such a case, your employer has the obligation to try to provide you with a similar position to the one held prior to your medical leave. However, your employer has no obligation to create a job for you if one is not available.

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Returning to work

What is the employer’s duty to accommodate me?

An employer must accommodate your disability to the point of undue hardship. Undue hardship is a fairly high standard. Although its limits are set case by case, it requires the employer to endure some level of hardship in reasonable accommodation, so long as that hardship is not undue. Examples of reasonable accommodation include modifying hours of work or duties, considering alternate jobs, working with others to find reasonable alternatives, and spending a reasonable amount of money to accommodate an individual (for example, buying tools or equipment).
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What if I can no longer do my job?

Accommodation relates in different ways to the essential and non-essential functions of a job. When a person cannot perform the essential functions of the role, even with accommodation, or when accommodation would impose undue hardship on the employer, a decision not to employ the person may not be discriminatory.
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What if I can only work part time or not as productively as I used to?

Your employer must reinstate you with the same benefits, in your “former position.” Upon returning to work, you must find the same conditions, in particular with respect to your position, your duties, your wages as if you had never been absent. If you require special accommodations, your employer is obligated to try accommodate you. If you cannot be accommodated with respect to your original job, your employer must try to find a similar job and provide training if necessary. However, your employer has no obligation to create a job for you.

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Is my employer required to give me back my old job, at my old pay and benefits, when I return to work?

If your job still exists because your employer has not experienced undue hardship or your position has not been eliminated due to factors unrelated to your medical condition, your employer must reinstate you with the same benefits, in your “former position.” Upon returning to work, you must find the same conditions, in particular with respect to your position, your duties, your wages as if you had never been absent. If you require special accommodations, your employer is obligated to try accommodate you. If you cannot be accommodated with respect to your original job, your employer must try to find a similar job and provide training if necessary. However, your employer has no obligation to create a job for you.

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Am I obligated to take any job that my employer offers me?

You must accept your original job if you are able to perform your original work. If you cannot for medical reasons, your employer must provide reasonable accommodations. If, after reasonable accommodations, you still cannot perform the job, then your employer must try to provide a similar position. If a similar position cannot be provided, then you may be terminated without it being considered discrimination.

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What does the employer have a right to know about my diagnosis when I return to work if I’m not requesting an accommodation?

If you are not requesting a reasonable accommodation, then you do not need to provide any information related to your diagnosis. You may be required to provide a medical certificate from a doctor that simply states that you are fit to return to work.

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If I request an accommodation, what does the employer have a right to know?

Your employer will need to know your limitations in order to provide reasonable accommodations. You have an obligation to cooperate with your employer’s request for information to establish reasonable accommodations.

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Is there an obligation for colleagues to accommodate me?

In providing reasonable accommodation, your colleagues may be required to make minor adjustments to facilitate the accommodation.

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What are my options if my doctor says I am allowed to return to work, but my employer will not accept me?

If you have given a reasonable notice to your employer that you are fit to return to work and they refuse, you may file a complaint with the Labour Standards, Pay Equity and Health and Safety Commission. You can find additional information on the subject at their website.

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Is my employer allowed to only take me back when I can work 100%?

Although the recommendation of your doctor for a progressive return to work may be considered a reasonable accommodation, your employer has no obligation to accept a partial return to work if they can demonstrate that the accommodation causes undue hardship for the company. Undue hardship has been described as having a significant economic or organizational impact on the company. This depends notably on the size of the company or the nature of the position of the employee.

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Who pays for any safety or operational assessments that I need to undergo in order to return to work?

Your employer is obligated to make such payments to the extent it does not cause undue hardship.

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Unionized workplaces

What is the union required to do to facilitate accommodation?

Your Union representatives have the obligation to cooperate with your employer in the determination of reasonable accommodations.

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What are my options if I feel that the union is not supporting me?

Your union has the obligation to defend your rights. If you feel that your Union is not meeting its obligation, you can file a complaint with the Administrative Labour Tribunal. More information on the subject is available at their website.

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What if my employer cannot find a role for me within my union? What is the duty to accommodate between unions?

The duty to accommodate does not apply between unions. In order for you to be able to integrate a new position within a different union, an arrangement must be taken between the two unions.

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Human rights complaints

What can I expect my award to be if I win a Human Rights case against my employer or my union? Are there any risks?

There are no certainties with the outcome of any legal procedures. If you win your case against your employer or your union, monetary compensation and/or reinstatement in your former position or a similar position could be awarded. Each case is different and the decision maker will take into consideration the facts of your case in order to determine the proper atonement.

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