Does substance abuse qualify as a disability in Canada?
The Canadian Human Rights Act dictates that employers are to accommodate their employees with substance abuse just as they would for any other disability. This means that the employers and employees need to cooperate and adapt to reach a reasonable solution.
When there is suspicion of substance abuse at work, this can pose a hazard and even be potentially unsafe. However, the individual still has the right to dignity and respect regarding their addiction. Since substance abuse is considered a disability, employees have a right to a discrimination-free workplace.
If there is a need for the employee to take time off to seek treatment, a leave of absence is not an unreasonable request. Most employers will not deny this request if a doctor’s note is provided. The letter should state the need for time off and the amount of time required. A new doctor’s note may need to be resubmitted every three to six months for more prolonged absences.
Employers may ask the employee to sign a return-to-work agreement or a relapse agreement in some cases. However, this does not absolve the employer of their duty to accommodate the employee with their disabling condition.
If you have been fired or let go due to your addiction, you have rights. You may be entitled to severance pay or to be reinstated and have the termination reversed. Having a lawyer to help you navigate this situation can relieve stress and streamline the process.
Employment and disability rights for substance abuse
Canadian citizens have rights that protect them in the Charter of Rights and Freedoms and the Canadian Human Rights Act. This means that those suffering from a disabling condition, like lupus, are entitled to rights and protections regarding their condition.
Along with the disability rights you are guaranteed in Canada, you also have rights as an employee. The human rights laws in Canada dictate that employers must assist their employees with medical requests to help accommodate their condition at work. Employees are protected from being fired over discriminatory medical reasons regarding their lupus. If lupus symptoms become too severe for an individual to continue working, then a leave of absence is a reasonable request. Most employers will not object to this if the employee provides a doctor’s note. The note should state the need for time off and the amount of time required. If this is a prolonged absence, the employer may request that a doctor’s note be resubmitted every three to six months. During this time, the individual has a right to submit their claim for long term disability benefits.
If the claim is denied, the employee may stay on a leave of absence and appeal. Termination due to a disability or medical condition counts as discrimination. In this case, the individual is entitled to severance pay. The decision may be reversed in some cases, and the employee can return to work if they wish. If you apply for long term disability benefits and are denied, you can remain on sick leave during the appeal process. The only requirement for this is the continued and updated submissions of doctor’s notes.
Know your rights. If your employer tries to fire you due to your lupus and the chronic pain that comes with it, you may be entitled to severance pay or the reversal of your termination. Hiring a lawyer to provide legal advice and help you navigate the situation can provide comfort and relief during this stressful time.
Types of disability rights for substance abuse
Not all disability insurance plans are the same. Here are the typical benefits included in Canadian disability insurance plans:
Paid Sick Leave
Some workers will have a bank of sick time to use in the first days of disability. The intent of this benefit is to allow the worker to have a few days to get back to work. Some workers may have many weeks or even months of accrued time to use.
If you do not believe that you will be able to return to work before your paid sick leave is exhausted, be sure to complete an application for disability insurance benefits right away. You do not need to wait until you have used all your paid sick leave before submitting your application. Also, it is always easier to work on a disability application while you are being paid so don’t wait until your benefits have run out.
Another major reason not to wait to apply for STD Benefits is because of deadlines that may apply. You may miss the deadline to apply for benefits because you are being paid sick leave benefits.
Employment Insurance Sickness Benefits
Your alternative to paid sick leave is government provided employment insurance (EI) benefits. Most workers have fewer than 15 weeks of paid sick leave so EI benefits will make up the difference between the expiry of paid sick leave and a STD Benefit. EI Benefits must be applied for through the government. In order to apply, you must obtain a medical report from your doctor and a Record of Employment (ROE) from your employer.
Go to www.servicecanada.gc.ca for information on the EI sickness benefit and to download the application forms. Service Canada will not process your application until both the medical form and the ROE has been submitted, so be sure to book a doctor’s appointment and request your ROE right away.
Short-Term Disability Benefits
The first of two main benefits in most disability benefit plans are STD Benefits. The purpose of STD Benefits is to provide you with income while you are unable to work due to illness or disability. The Benefit is designed to cover short absences and not intended to be a long-term solution.
STD Benefits provide a weekly or bi-weekly payment for a number of months. The short pay periods are designed to provide you with uninterrupted income while you are absent from the workplace. Most often, you will be required to use accrued paid sick time before accessing your STD Benefits. While cashing in sick time may be frustrating for some, it is wise to accept this condition because the sick time should provide you with more income than the STD Benefit.
The STD payment typically provides for a percentage of your regular weekly earnings or a specific amount of money. The benefit payment calculation details are specific to the policy and set out in the insurance policy document.
Payment examples include:
• The worker will be paid 60% of his or her pre- disability weekly earnings, or
• The worker will be paid $500 per week, or
• The worker will be paid their pre-disability weekly earning, up to a maximum of $500 per week.
Most STD Benefits last between three and six months. If the group plan does not have a LTD Benefit, the worker will have no further benefits under the group policy.
Long-Term Disability Benefits
LTD Benefits are the second major element of most group disability plans. There are some plans, however, that only include LTD Benefits. If your plan has both STD and LTD Benefits, a disabled worker will ‘roll over’ to the LTD Benefit at the expiry of the STD period if they are eligible to do so.
Eligibility for LTD Benefits is not always a given. Workers often earn their eligibility to the Benefits through working continuously for the employer for a number of months.
Eligible workers will be able to make a claim for LTD Benefits if they have been out of work continuously for a specific period of time. This period of time is typically the length of the STD Benefit. This period of time set out in the policy wording is referred to as a “waiting period” or “elimination period”. LTD Benefits will not be paid prior to the elimination period; however, benefits will be paid for the total period of continuous disability if the claim is approved.
Benefit payments under a LTD Benefit are assessed based on a percentage of your pre-disability income. Typically, the benefit will be between 55% and 75% of your regular earnings, or a set amount of money per month. Other polices will have a net formula.
Payment examples include:
• The worker will be paid 66.7% of their monthly pre-disability earnings, or
• The worker will be paid $3,000 per month, or
• The worker will be paid 66.7% of his or her monthly pre-disability earning up to a maximum of $3,000 per month.
The exact payment formula will be set out in the policy document. Be sure to refer to your policy to confirm what the applicable payment formula is for your claim.
The LTD Benefit will make payments on a monthly basis for a set number of years (e.g. 5, 10, 20), or until you reach a certain age (e.g. 60, 65, 67). Some plans may have a benefit termination formula where a mixture of the years a claimant received benefits and the claimant’s age is used to calculate an end date. Generally speaking, the latest date where a claimant will be eligible for Benefit payments is called the Maximum Benefit date.
How to win disability benefits for substance abuse
The first step in making a successful long term disability claim for lupus is to secure an official medical diagnosis. A file full of medical evidence supporting your claim is a vital first step towards having your claim approved. Securing a proper diagnosis can be difficult, especially if you're not fully ready to acknowledge that there may be a problem.
You've completed the first step after you’ve gone through the specialized testing and been officially diagnosed. However, insurance companies are also looking to see that your condition is severe enough to prevent you from working. This means you must provide them with all relevant information regarding treatments, medications, and therapies you’re using to minimize your symptoms and flare-ups. Insurance companies will also investigate how often you’ve been to the doctor to see if you’re doing all you can to take care of yourself. Most often, insurance companies will want to see that there has been time spent in a rehabilitation program or facility. They want to see that you're doing everything to become clean and stay that way.
Now that you have a medical diagnosis and evidence supporting your claim, you must prove that your substance abuse prevents you from working. Proving an invisible illness can be challenging, especially in the eyes of an insurance company. To do this, you must demonstrate that you have done all you can to stay sober and employed and are using the benefits as a last resort. Insurance companies won’t know what you don’t tell them, and they won’t ask. Providing as much detail as possible regarding your inability to function at work will help you strengthen and win your claim.
How to hurt your long term disability claim for substance abuse
- Presenting a claim lacking an official medical diagnosis
- Omitting or forgetting important details regarding how your symptoms limit your ability to function at work
- Being uncooperative to those working on your claim
- Unnecessarily stalling or blocking reasonable requests of information pertaining to your claim
- Having statements that contradict your claim or your medical file
How to improve your long term disability claim for substance abuse
- Have an official diagnosis from a specialist
- Provide as many details as possible about your lupus and how the symptoms affect your work and home life
- Have a cooperative and polite attitude to those involved with your claim
- Be honest about your claim, even if it doesn't present your case in the most positive light
- Be upfront about struggles, triggers, and relapses
Common reasons for denial of substance abuse claims
Two of the most common reasons for the denial of long term disability benefits for substance abuse are missed deadlines, and insufficient evidence. When someone struggles with addiction, it takes over their life. Thus, making it to important doctors appointments can be difficult. Insurance companies aren't empathetic to these challenges, and use this as a reason to deny the claim based on lack of effort.
Sometimes substance abuse falls outside of the scope of what an insurance company will consider a disability. Even though it is recognized in Canada as a disabling condition, it still falls into a grey area when it comes to policy. Unfortunately this happens all too often, and must turn into a legal issue in order for the insurance company to grant the long term disability benefits.
What if your claim is denied?
Know that you are part of a large group of Canadians who have had their benefits denied by the insurer at some point during the course of a claim. Those who have been issued a denial letter are those who had their application rejected by the insurer. They were deemed eligible to apply for benefits, but not totally disabled and therefore were not approved for benefits. Those who have been issued a termination letter are those who were approved for benefits but were then found not totally disabled. The insurance company generally chooses to terminate benefits at or before the two-year mark from the date of disability.
For those who have been denied, some will be legit mate because the applicant is not in fact disabled. Other applicants are truly disabled but were simply denied by the adjuster because their application was not strong enough to warrant approval. Of course, the insurer would prefer that denied applicants forgo the appeal process and not sue for benefits.
For those who were approved and then cut off sometime afterwards, the insurer is attempting to ensure that the denial is accepted by the insured during the “own occupation” period. This is ideal for the insurer as it may prevent appeals or legal claims. Thus, it allows the adjuster to close the file well before the Change of Definition date occurs.
You cannot change the fact that the insurance company denied your claim. However, you do have complete control over what you do in response to the denial or termination of benefits.
The options available to the applicant will depend on what is permitted by their policy or plan. In most cases, the applicant can advance their claim to an internal appeal mechanism or commence a lawsuit. If a plan is through a non-profit disability benefit trust fund, it is likely that only an internal appeal mechanism will be available to them. For these workers, they have been denied the right to have a neutral court decide whether or not they are entitled to benefits.
WHAT IS THE DIFFERENCE BETWEEN A DENIAL LETTER AND A TERMINATION LETTER?
It is a bad day for any disabled worker when they receive a denial letter or termination letter. The letter is essentially a rejection of financial support in a time of need and it leaves most people very worried about their financial future. After receiving a letter, some disabled people experience severe declines in their mental or physical health because it feels like their expected safety net has been ripped out from beneath their feet.
What the disabled person does after receiving a denial letter or termination letter is critical. First, be sure that you keep a copy of the letter. Photocopy and safely store a copy of the letter before making any marks on the letter. Any competent disability lawyer will want to see a clean copy of the letter to review at an initial meeting.
The denial letter is also important as it offers a window into the insurance company’s decision-making process on your file. The letter should (but does not always) spell out what information was reviewed and what findings were made with respect to the information in your file. The insurer should explain why your application was denied, or why you are no longer entitled to benefits. For new claims, the denial will typically mention that while your injuries cause you to suffer some restriction, you do not meet the test for total disability. For cases where a benefit termination letter is sent, the insurer will often mention that activities (often from surveillance evidence or information from phone calls) are inconsistent with reported restrictions and limitations. The explanation provided in other circumstances will parrot select wording from the medical expert chosen by the disability insurer. Once you have sorted out why you were denied, you can then determine what you can do to attempt to overturn the unfavourable decision.
Warning! There is a lot of misinformation about insurance policies and the rights that come with them. Do not rely on the word of a union representative, co-worker, or supervisor to explain your rights and ideal strategy when facing an insurance benefits claim. This is especially so where there is no right to sue. While they may have the best intentions, they may not have the best advice. Contact an experienced disability lawyer to avoid a major claims mistake.
