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Survivors Law, policy, and practice information Union help for cancer patients

Union help for cancer patients

Ms. Nancy Elliott

Ms. Nancy Elliott is a partner in Stockton Maxwell & Elliott, a Halifax law that practices mostly in worker-side labour and employment law. She has a journalism degree from the University of King’s College, a law degree from Dalhousie University, and is working toward a master of laws in dispute resolution at Osgoode Law School in Toronto. For more than 20 years, Ms. Elliott has assisted both public and private sector unions with all aspects of union and workplace issues, including union governance and policy, organizing and other labour board matters, collective bargaining and contract administration, employee performance, attendance and leave issues, human rights, privacy rights, disability issues, and health and safety.

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Assistance available

Being a member of a union is like having another kind of insurance to draw on when you’re ill. What help is available depends greatly on:

  • the specific union and its resources
  • the contents of your collective agreement
  • your workplace
  • your individual circumstances

Here are four things your union may be able to help with:

1. Accessing pay, benefits and rights available under your collective agreement

Your collective agreement is a legal contract between your union and your employer that sets out your terms and conditions of employment. Nearly every collective agreement contains clauses about paid sick leave, but check out the other provisions too. You might find provisions about:

  • getting an advance of sick leave or drawing from a sick leave bank once the personal sick leave you have accrued runs out
  • continuing to participate in group benefits and pension plans while you are sick
  • how long you can be off work and still have a right to return to your own job
  • accumulating and keeping seniority while you are off work
  • the medical information to which your employer is entitled
  • the process for returning to work following sick leave, including any accommodations you may need

Every collective agreement has different provisions and even where provisions are like those in another collective agreement, it is possible to interpret or apply them differently. If you are unsure about what a specific clause in your collective agreement means, you should talk to a union representative. Human resource managers may also be able to help.

Your collective agreement also contains provisions, usually in the form of a grievance and arbitration process, about what to do if your employer makes a decision that you disagree with. In most cases, you will need your union’s help to file a grievance.

2. Accommodation

Provincial and federal human rights legislation says that employers cannot discriminate against employees with disabilities. The idea is that employees have, as closely as possible, the same position and opportunities they would have except for the disability.

In order to not discriminate, courts have found that employers have a duty to accommodate an employee’s disability unless doing so brings undue hardship to the employer. What is considered undue hardship depends on all the circumstances at the time. Generally speaking, though, to meet the test for undue hardship, an employer must show that accommodating an employee with a disability would be quite difficult — something well beyond minor inconvenience. Circumstances that courts may consider include the employer’s costs, the impact on business operations, and how an accommodation might affect other employees.

There are a number of situations where an employer may have a duty to accommodate. For example, an employee may need:

  • special equipment or a change in how work is carried out
  • reduced working hours or time off while undergoing treatment or recovering
  • temporary accommodation to ease back into work after they are well again
  • a permanent accommodation because an employee is unable to do some or all of the duties that they previously did
How accommodations are made depends on the specific circumstances of the individual, the disability and the workplace. Sometimes, it will be necessary to try one kind of accommodation, and then if that doesn’t work, to try another. Your union may also be required to contribute to the accommodation by, for example, agreeing to a deviation from the terms of the collective agreement.
In most cases, your employer will look for ways to accommodate you in your own job. If that does not work, the next route is to transfer you to another job in your bargaining unit that suits your functional limitations. If that does not work then the next route is to transfer you to another bargaining unit or a non-union position.

If you are finding it difficult to get the accommodation(s) from your employer that you and your medical advisors think you need, your union may be able to help. In many cases, it is a matter of getting everyone involved – you, your union representative, your managers, and maybe your healthcare providers – to work together to come up with what will work for both you and the workplace. Your union may also be able to advise you on your obligation to accept a reasonable accommodation that your employer offers and in making your co-workers aware of the employer’s duty to accommodate you.

3. Dismissal

Some employers move to dismiss employees who have been off work for a time due to illness. For a unionized employee, there are three main grounds for allowing such a dismissal.

First, some collective agreements include a provision, known as a “deemed dismissal clause. This says that after an employee has been off work for a certain period of time (usually at least a year), the employee will be deemed to be (considered) dismissed. Do not take these clauses at face value. Sometimes they will be found to contravene the employer’s duty to accommodate a disability to the point of undue hardship. If there is a deemed dismissal clause in your collective agreement, you should talk to your union about it, preferably before the deemed dismissal time limit (off work usually at least a year). For the deemed dismissal clause to be valid, there needs to be little likelihood that you will return to work given all the circumstances at the time. On top of that, the deemed dismissal clause is just one of the circumstances considered.

The second most common cause of dismissal for an employee with a disability is what is known as “frustration of the contract”. This happens if an employee is unable to fulfill the terms of the employment contract because of events they did not foresee, such as an illness. However, knowing at what point frustration happened is not easy. Again, it involves figuring out the likelihood of an employee being able to return to work in the foreseeable future. This likelihood is based on all the circumstances at the time, including the nature and length of your illness and your prognosis. Your union may be able to help figure out what medical information might demonstrate that frustration of contract has not happened. The union may also help you with presenting that information.

The third way that employers may move to dismiss ill employees is through some sort of reorganization or downsizing of a workplace. In this case, your union should be able to help figure out whether your employer moved to dismiss you for these valid reasons and not due to you being ill. Your union can also ensure that you receive any severance pay that is available or that you keep your rights to reassignment or bumping until you are medically able to return to work.

4. Employment Insurance sick leave, long-term disability benefits, Canada Pension Plan disability benefits, and human rights claims

Your union is only responsible for helping you with difficulties you have with your employer. In many cases, that means that your union does not have to help you with unfavourable decisions made by insurance companies or government bodies. However, some unions do offer such help. So you may wish to contact your union if you have trouble getting Employment Insurance sick benefits, Canada Pension Plan disability or long-term disability benefits under a group plan.

Your union may also be willing to help you make a claim under human rights legislation. Even if you do not want help with this, you may wish to check with your union before starting a claim. Doing so might affect your ability to file a grievance under your collective agreement.

Getting your union’s help

To get your union to help, you usually just need to make a phone call or send an e-mail. Sometimes, your employer may already have contacted your union about action it is taking or considering, and so your union representative will be the one to contact you. Either way, to make the most of your union as a resource, follow these steps:

Step 1 – Read your collective agreement. Make note of any provisions you think apply to your circumstances.

Step 2 – Talk to your union steward or a member of your executive. Some issues surrounding illness and accommodation are very complicated. So if the person you talk to first does not seem to have much knowledge, then you should ask if your union has other resources available. This could be an employee relations officer, a business agent or a lawyer. If you are a member of a larger union, you may be able to directly contact a regional or national office for help.

Step 3 – Advocate for yourself. Unions have a lot of different issues needing their attention. In some cases, your union representatives may not be fully aware of the law or the options available to you. Ask questions.

Step 4 – Keep in touch. If you were expecting to hear back from your union by a certain date, contact the union yourself. Ask to be copied on any e-mails and correspondence about you. And ask to be updated as new information becomes available.

Disclaimer: This article is intended to provide general information and in no way constitutes legal advice. Specialist advice should be sought about your specific circumstances.