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Legal questions: Canada

Allison Buchanan, Robinson Heeney LLP

Ms. Allison Buchanan is an associate lawyer at Robinson Heeney LLP in Toronto and practices in all areas of employment law. She graduated from the University of Kent and was called to the bar in 2015. Following a summer spent at a leading boutique employment firm and her articling term at a litigation firm, Ms. Buchanan joined Robinson Heeney. She provides advice and representation to both employers and employees on a wide range of labour and employment issues. These include wrongful dismissals, employment standards, employment contracts, human rights and accommodation, and related court litigation. Ms. Buchanan’s practise also includes workplace investigations.

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James D. Heeney, Robinson Heeney LLP

Mr. James Heeney is a partner at Robinson Heeney LLP and specializes in employment law. He graduated from Queen’s University and was called to the bar in 2004. Mr. Heeney provides advice to both employers and employees on all areas of employment law. His areas of expertise include employment agreements and contracts, restrictive covenants, executive compensation, terminations and human rights. Mr. Heeney has performed investigations in both unionized and non-unionized workplaces. He has written numerous articles for several employment law forums and for CBC News and was named by the Canadian HR Reporter as a leading employment lawyer in Toronto.

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Prepared courtesy of James D. Heeney and Allison Buchanan, Robinson Heeney LLP

Most employees work in provincially regulated industries and are governed by the provincial human rights legislation that exist in the province in which they work (For legal resources on human rights by province, view our legal resources on human rights.) The Canadian Human Rights Code governs employees who work in federally regulated industries such as banking, telecommunication and transportation. See the Government of Canada’s list of Federally Regulated Businesses and Industries for a list of federally regulated industries.

These answers to frequently asked legal questions are for general information only. If you have questions about your rights as an employee affected by cancer, it is important to talk to a lawyer.

Note for Quebec residents: This information applies to most Canadian provinces and territories, but Quebec residents should consult legal questions: Quebec for guidance specific to their province’s laws.

Under all Canadian human rights laws, cancer as a ground of discrimination falls under physical or mental disability. Please note that any reference to “disability” in these answers merely uses the language of the laws. It in no way reflects the actual abilities of someone who has or has had cancer.

Questions list:


Job interview

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

In most provinces, you do not legally have to tell a potential employer that you have cancer. For example, both the British Columbia Human Rights Code and the Ontario Human Rights Code state that employers must not use application forms or ask job applicants questions that directly or indirectly require them to give information about a ground of discrimination.

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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?

The decision to disclose a cancer diagnosis and its effects is entirely up to you. An applicant is not required to disclose a need for accommodation during an interview. This is based on the idea that each person must be protected from discrimination, and therefore protected from having to disclose any information which is directly related to a “protected ground.”

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When hired

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

No employer can force an employee to work more than the maximum number of hours per day or week under provincial employment standards law. (Read more in our employment standards article.) For example, in Ontario, an employer cannot force an employee to work more than the number of hours in an employee’s regular workday, typically 8 hours. The maximum is 48 hours a week. The employer can, however, ask an employee to work more than 8 hours, but the employee does not have to agree.

If you requested accommodation for your cancer, which includes not working overtime, your employer has a duty to accommodate this need to the point of undue hardship. If, however, your employer can show that working overtime is an essential duty of your job or that accommodating you would mean undue hardship, then you may be required to work overtime without the employer being considered discriminatory.

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

An employer’s duty to accommodate your disability has nothing to do with whether you are a new or seasoned employee. Human rights law states that an employer must accommodate an employee to the point of undue hardship. Paying accommodation costs is not necessarily considered undue hardship. That is determined on a case-by-case basis and considers, among other things, the accommodation’s cost, the employer’s size and the essential duties of the job.

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Employment

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

The decision to disclose a cancer diagnosis and its effects is entirely up to you. Whether or not you choose to disclose a cancer diagnosis should include serious considerations of the possible outcomes. For example, if you don’t need any accommodation or time off, there may be no benefit in advising your employer. While discrimination is indeed illegal, the outcomes of disclosure should be carefully considered. On the other hand, if your illness is affecting your ability to do your job as well as you would like, it may be worth informing your employer, so that they are aware of the circumstances and don’t assume that you’re just performing poorly. Similarly, if an accommodation is required, you will need to advise your employer. As a rule, an employer is not obligated to accommodate the needs of an employee if they do not know about them. For more information, see Who Gets to Know: How to Exercise your Power of “Disclosure.”

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What is my employer entitled to know?

If you do not require accommodation, an employer has, in most cases, no legal right to know anything about your health. However, if you do require accommodation, including time off for appointments, normally confidential information may have to be shared with your employer. While employers should limit requests for information to things reasonably related to the nature of the accommodation and only request what is needed to respond to accommodation requests, you may still be required to disclose the following:

  • The nature of the illness and how it manifests as a disability (which may include diagnosis)
  • Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for the same)
  • The restrictions or limitations that flow from the disability (i.e. a detailed outline of what duties and responsibilities the employee can and cannot do, and possible alternative duties)
  • The basis for the medical conclusions (i.e. nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect)
  • The treatment, including medication (and possible side effects), which may impact the employee’s ability to perform their job, or interact with management, other employees or “customers”

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

Yes. Your employer cannot disclose any of your personal health information without prior consent from you. Doing so will have serious legal ramifications, and exposes an employer to serious liability. It is common for employees to be asked to sign a consent form so that the employer can communicate with a potential short-term or long-term disability insurer.

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What am I entitled to keep confidential?

Exactly what and how much you must tell your employer about your cancer depends on whether you are asking for accommodation. If you do not need accommodation, you may decide not to disclose your illness at all. To read more about disclosure, see our article Who Gets to Know: How to Exercise your Power of “Disclosure.” If you ask for accommodation, as a rule you do not have to disclose anything more than what the employer needs to fulfill your accommodation request. That said, you must:

  • participate in the accommodation process
  • act in good faith
  • accept any reasonable accommodation your employer offers, even if it is not your ideal

Employees who refuse reasonable accommodations and then make human rights complaints may have them dismissed.

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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 at work is never acceptable, especially when it relates to something protected by human rights legislation such as disability. Regardless of your health, your employer must create a safe work environment, one that is free from harassment. Employers must take action on any reports of harassment among employees, and develop and maintain policies to address it.

If you are being harassed at work, start keeping records of it right away so that you have evidence. Find out what your workplace’s harassment policy says and follow its procedure. You may also want to speak to your human resources department and even talk to a lawyer.

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Can I lose my job because I have cancer?

Simply put, your employer cannot legally fire or lay you off because you have cancer. It is illegal to discriminate an employee or job applicant because of any grounds protected by human rights law, including disability. If a human rights tribunal finds that your employer fired or laid you off because you have cancer, the employer risks serious legal liability for discriminating against you. Even if your employer has a legitimate business reason for terminating your employment, if the decision is even slightly based on the fact that you have cancer, it will be seen as discrimination. The employer can, however, terminate an employee with cancer if the reason is completely unrelated to the health condition and required accommodations (for example, a legitimate restructuring).

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

An employer must accommodate your reasonable need to take time off for medical care. However, you must tell your employer why you need to take time off if it is outside of your vacation and sick days.

If an employer terminates your employment because you regularly miss work but they do not know why, it may not be seen as discriminatory. In most cases, employers do not have a duty to accommodate if they are not aware of the need for accommodation. However, if your employer is aware of your need to take time off for medical care and a human rights tribunal finds that the time off was even partially a factor in the decision to fire or lay you off, then the tribunal will view the decision as discriminatory.

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Time off work

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

As a general rule, your employer is entitled to know only as much as is necessary to accommodate your condition. That said, if you do require accommodation, including time off, normally confidential information may have to be shared with your employer. While employers should limit requests for information to things reasonably related to the nature of the limitation, and only request what is needed to respond to accommodation requests, you may still be required to disclose the following:

  • The nature of the illness and how it manifests as a disability (which may include diagnosis).
  • Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for the same).
  • The restrictions or limitations that flow from the disability (i.e. a detailed outline of what duties and responsibilities the employee can and cannot do, and possible alternative duties).
  • The basis for the medical conclusions (i.e. nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect).
  • The treatment, including medication (and possible side effects), which may impact the employee’s ability to perform their job, or interact with management, other employees or “customers.”

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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 are on sick leave as approved by your employer, then your superior should not request you to work while you are away. That said, the reality of many work environments today make these kinds of casual requests more common than you may expect. While it will depend on your relationship with your superior, you can choose to (a) inform them that you are on sick leave and ask them to forward their request to the appropriate person, or (b) simply speak with your employer’s human resources department or the person in charge of managing your absence for guidance. Remember, you are under no obligation to share any personal or confidential information regarding your health with your superior.

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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?

Just as a superior should not request that you do work while on an approved sick leave, a superior should not ask you to return to work while on a properly approved sick leave. How you decide to respond to the request depends on your relationship with your superior, but you are under no obligation to inform them of any personal or confidential information regarding your health. Speak with your human resources department or the person in charge of managing your absence for guidance.

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

While you cannot be laid off because you are on sick leave or long-term disability, your employment can be terminated if the termination has nothing to do with your absence. For example, an employer who is restructuring a department and cannot move you to another role in the organization may rightfully terminate your employment, even if you are on sick leave or long-term disability. Please note that in this case an employer would still be required to provide you with reasonable notice and any eligible statutory entitlements. An employer may also rightly terminate you if accommodating your absence has amounted to undue hardship. As stated above, your employer has an obligation to accommodate your disability to the point of undue hardship. While this is a high threshold, it does not make an employee bulletproof while on leave. If, however, your absence is found to have played any part in the decision to terminate your role, the decision will be seen as discriminatory. Employees who are terminated while on sick leave or long-term disability would be well advised to seek independent legal advice regarding their unique situation.

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

The terms of your long-term disability plan differ between insurance providers and employers. If you have questions about your long-term disability eligibilities, it is best to contact your insurance provider or your human resources department.

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

There is no established length of time that an employer must keep your job open and available for you to return to. However, an employer has an obligation to keep your job open and available for your return up to the point where it would otherwise be too onerous to do so (undue hardship), or until the contract of employment becomes frustrated because there is no prospect that you will return to work. Undue hardship is a very high threshold and the Supreme Court of Canada has stated that an employer has to accommodate an employee up to the point of undue hardship, which necessarily requires some level of hardship. What that amounts to in terms of time depends on each individual employer and the circumstances of each case.

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

An employment agreement (or contract) is frustrated when there is no way an employee can return to work, with or without accommodation. Outside of this clear situation, there is unfortunately no hard-and-fast rule about how long an employer must accommodate your leave. Human rights tribunals decide each case based on the employer’s ability to accommodate your leave without enduring undue hardship. The courts assess whether an employee can return to work at any point in the future. If return is likely, then the court will probably decide that the contract of employment agreement is not frustrated. There are several cases where an employee was unable to work for years and the employment contract was not deemed to be frustrated.

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

The employer’s duty to accommodate includes the duty to give you back your job after you return from medical leave or to transfer you to a suitable, similar position if your job is no longer available for reasons unrelated to the leave. Although accommodation in your original job is always preferable, it may not always be possible. In some cases, it may be more appropriate to transfer you to a different job in the same organization. However, the employer must ensure that a decision is not based on the absence and that you are not penalized because of your absence.

You must give your employer reasonable notice of your return to work. If you have done this and your employer does not plan for your return, you may have grounds for a human rights complaint. It is important that you keep records of all letters, emails and phone calls and that you talk to a lawyer.

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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?

If you are only able to work part time after you return or are less productive, your employer must work to find alternate ways to accommodate your needs, while still ensuring that your job gets done. If an employer does not explore your accommodation options and put some in place, both these actions can be viewed as discriminatory.

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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?

Your employer must find you a job if you are medically ready and able to return to work. The duty to accommodate includes trying to return you to your original position after you return from medical leave. If your former job is not available, the employer must find you suitable alternative work. Although accommodation in your original job is always preferable, it may not always be possible. In some cases, it may be more appropriate to transfer you to a different job in the same organization. However, the employer must ensure that you are not penalized because of your absence.

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Do I have to take any job that my employer offers me?

You must cooperate with your employer in the accommodation process. This includes acting in good faith, providing medical information your employer needs to accommodate you, and recognizing that the accommodation offered may not be your ideal. Employees cannot dictate the terms of their accommodations, and they must accept any reasonable accommodation their employers offer. That said, the employer must also try to return you to your original job if you are able to fulfill its essential functions and provide appropriate accommodations. However, a person’s previous job may no longer be available for legitimate business reasons. In this case, the employer must explore other options to make sure that employees are not penalized because of their absence.

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If I do not request an accommodation, what does the employer have a right to know about my health when I return to work?

Disclosing anything about your health is entirely up to you. Before disclosing, you should consider all possible outcomes. For more information on disclosure, read our section entitled who gets to know: how to exercise your power of “disclosure.”

If you do not request accommodation, your employer is not entitled to know anything about your health. However, depending on the nature of your job, you may have to document your ability to return to work.

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

An employer has the right to enough information about your medical condition to properly accommodate you. Although this information likely includes your capabilities and limitations, it does not necessarily include your cancer diagnosis or the results of any specific tests. Generally, employees must tell employers only what they need to know.

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Do my colleagues have to accommodate me?

If your employer must accommodate you, then the measures they put into place to ensure the accommodation works may mean your colleagues will give you more support. This does not mean, however, that you can decide every time you need support who gives it and when. Co-workers should understand the duty to accommodate. Employers and managers should communicate why accommodating employees is valuable for the workplace as a whole and for all employees, who may need it in future. It is not helpful if co-workers feel that someone is receiving special treatment. However, this does not mean that your co-workers are entitled to know about your disability or health-related needs. These are confidential between you and your employer.

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What if my doctor says I can return to work but my employer will not accept me?

Your employer must accept you if you are medically ready and able to return to work. The duty to accommodate includes returning you to your previous job or to a suitable similar position. Although accommodation in your original job is always preferable, it may not always be possible. For example, a person’s previous job may no longer be available for legitimate business reasons. In this case, the employer must explore other options to make sure that employees are not penalized because of their absence.

You must give your employer reasonable notice of your return to work. If you have done this and your employer does not plan for your return, you may have grounds for a human rights complaint. It is important that you keep records of all letters, emails and phone calls and that you talk to a lawyer.

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

No, an employer must make reasonable accommodation for you to return whenever you and/or your doctor feel you are ready. This is the case even if you can only work part time or do part of your job. Reasonable accommodation may involve the employer finding suitable alternative work for you even if it is not in your previous job.

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Who pays for any safety or physical assessments needed before I return to work?

Your employer pays for any safety or physical assessments necessary for you to return to work, up to the point that their cost causes undue hardship for the employer. Undue hardship is a fairly high standard and, although its limits are set case by case, it requires the employer to endure some level of hardship in reasonable accommodation.

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Unionized workplaces

What does a union have to do to facilitate accommodation?

As in non-unionized workplaces, unions must ensure accommodation of employees’ disabilities. Although the accommodation process is a joint effort between employers and employees, employers can be expected to start the process and must consider all available options. When the union and the employer discriminate, they must both remove or alleviate the source of discrimination.

If an employer and a union cannot agree on how to resolve an accommodation issue, the employer must make the accommodation despite the collective agreement, unless it would cause undue hardship. According to previous court cases, seniority or impact on other union members may be considered undue hardship. If the union opposes the accommodation, or does not cooperate in the accommodation process, then the union may be exposed to a human rights complaint.

Unions have to meet the same requirements as employers for demonstrating undue hardship. For example, if disruption to a collective agreement creates direct financial costs, these can be taken into account in deciding undue hardship.

In all unionized work environments, human rights take priority over collective agreements. Unions and employers must therefore take special care to ensure that they maintain employees’ individual human rights alongside the rights of union members in collective agreements, as well as business or union objectives.

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What if my employer cannot find a job that is covered by my union?

Both your employer and your union must cooperate to find you a suitable job as an accommodation. If jobs in your workplace are covered by several unions, your employer may have to find you alternate work in another union’s department. However, in practice this is very difficult because the other union is not obliged to accommodate you as your own union or employer is. If this happens to you, you should talk to a lawyer.

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Human rights complaints

If I win a human rights complaint against my employer or my union, what can I expect my award to be?

Human rights complaints are usually heard by a human rights tribunal. These tribunals exist in each province and territory, and there is one for federal areas of jurisdiction. In some provinces, like Ontario, you can bring a human rights complaint alongside another claim to a traditional court. Both ways offer their potential risks and rewards.

Although remedies in traditional court cases are largely monetary awards, human rights tribunals can order both monetary and non-monetary awards. For example, a human rights tribunal can order an employer to give you back the job, promotion or offer of employment you would have had if the discrimination had not happened. Other non-monetary awards are removal of a harasser from your work environment or a letter of reference.

A tribunal can order two types of monetary awards. The first is general compensation for your loss of the right to be free from discrimination, including insult to your dignity (also known as general damages). The second type of monetary award is compensation for any costs you incurred due to the discrimination (also known as special damages). Traditionally, awards at tribunals across Canada rarely exceed $15,000 to $20,000, although they have in recent years been as high as $75,000 in British Columbia and $100,000 in Ontario. Both of these cases involved especially nasty behaviour by employers.

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Are there any risks in making a human rights complaint?

Bringing a human rights complaint to a tribunal is less risky than bringing a claim to traditional court. For example, if you are unsuccessful at a tribunal, you do not have to pay the costs your employer incurred defending themselves against your complaint. This is not true in a traditional court case where the loser of the lawsuit must pay the winner’s costs. This can mean that the loser owes tens of thousands of dollars to the winner.

Although it is illegal for an employer to make any reprisal against you if you make a human rights complaint, doing so will likely affect your work environment and your relationship with your supervisor and employer. You may be able to resolve the issue quickly and effectively after figuring out what resolution you want without making a formal complaint. We recommend that you talk to a lawyer about the unique circumstances of your case.

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