Does mandatory retirement apply to contractors?

THE QUESTION

What is the current law on mandatory retirement? Does it apply to independent contractors or consultants?

THE ANSWER

Mandatory retirement is illegal. Workers are entitled to protection from age discrimination and they cannot be forced to retire at 65 or any other number. The only exception would be where age plays a genuine role in an employee's ability to perform the essential conditions of his or her job. An example would be where the physical requirements of the work are such that a reasonable policy on retirement age may be necessary.

Age discrimination does not have to be overt – such as where there is an explicit policy on retirement. If an employer targets older employees for termination without having a published policy, this is equally illegal.

THE QUESTION

I'm off on sick leave through my employer's self-insured short-term sick plan. My employer contracts the services of a third-party disability management firm to work with me on their behalf, and assist in adjudicating my claim for benefits. Is that third party entitled to information related to my health condition, such as the diagnosis, treatment plan, and so on? I'm concerned about my right to privacy and confidentiality in this instance.

THE ANSWER

If you don't provide the required health information, you can be denied benefits and denied the time off work altogether. Third-party disability management firms normally do not share diagnoses and treatment plans with employers. This is part of their deal with the employers. Note that if you want any accommodation from your employer other than time off work, you will need to disclose some of the details of the impact of the illness on your ability to properly perform your job in order for your employer to properly ascertain how to accommodate you.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes.

E-mail: Dan@canadaemploymentlawyer.com

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