THE QUESTION
I’ve been on long-term disability for five months because of mental-health issues from working in a high-stress workplace. A recruiter recently reached out about a new position that sounds like a much better fit for me. Am I allowed to quit my current job while on disability to accept a new job offer from another company? I understand my disability payments would end once I accept a new job.
THE FIRST ANSWER
Rajiv Haté, personal injury and disability lawyer, Kotak Law, Mississauga
The short answer is yes. However, doing so could create problems with your eligibility for ongoing or future disability benefits.
If you discuss a return to work with your doctors and/or the insurance company paying you disability benefits, the insurer will likely use this as a reason to deny further benefit payments and may even argue you should not have been paid for any period from when you started looking for a new job. They could argue this shows you were of the mindset you were capable of returning to work from that point on and ask you to repay any benefits you received during that period.
Another thing to consider is that just because a recruiter has reached out to you, this does not necessarily mean you will get the job. But if you do, and the new job does not work out, you may not be able to change your mind and ask the disability insurer to continue paying you disability benefits.
Prior to starting a new job, you should ensure you are recovered, so that you will be successful with a return to work. You should discuss this with your doctor(s) to get their approval.
Something else to consider is if the new employer offers disability benefits, many group policies contain exclusions for pre-existing conditions. This means if you have to stop working at the new job because of the same or a similar medical condition and you apply for disability benefits, there is a risk your claim could be denied if it falls within this pre-existing condition exclusion.
THE SECOND ANSWER
Sarah V. Coderre, partner, Bow River Law LLP, Calgary
You have the freedom and the right to leave your employment at any time. However, if you are currently on long-term disability you may want to reconsider accepting a new position before you have been medically cleared to return to work. Generally, once someone qualifies for long-term disability benefits, they will continue to receive those benefits if they leave their employment as long as they remain “disabled” as defined in the policy, and are still within the coverage limits of the policy (most policies will expire when a person turns 65 years old).
If you accept a new position and begin working elsewhere, you will no longer be deemed to be “disabled” under the long-term disability policy and your coverage will end. While it sounds as though your current work environment is not a place you can return to once you are medically cleared to work, the new position is full of unknowns. If you end your disability benefits to obtain this new employment but then subsequently face some of the same issues, or are not fully recovered and able to take on the challenges that the new job brings, you will not be able to resume disability benefits or requalify under your old company’s policy.
Many companies now require a new employee to pass their three-month probationary period before they can access full benefits. It is possible that if you are unable to perform your new job because of your health that you could be terminated prior to the probationary period ending and you being eligible for any disability benefits. While a termination because of disability-related performance issues could open the door to a human rights complaint for discrimination on the basis for mental health disability, you would likely go a long time without any sort of compensation as the complaint is reviewed and adjudicated.
Your position is a difficult one. While there are no legal barriers to you leaving your former employment and choosing to end your disability benefits in order to take another job, there are some practical concerns you should consider. You should consult with your medical practitioner before you accept any new employment and give up your disability benefits, as you may not be medically ready to return to work. Should your condition worsen or you relapse, you could find yourself without the benefits you need to support yourself.
Have a question for our experts? Send an email to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.