HIV & AIDS Legal Clinic (Ontario)
Community Legal Worker
HIV & AIDS Legal Clinic (Ontario)
(Two women are sitting at a desk, facing the camera.)
Workplace Health Video Series
Canadian Working Group on HIV and Rehabilitation
Renée: This presentation is about income support options for people with HIV/AIDS in Canada who are unable to work. We’ll talk about applying for and maintaining various kinds of benefits when you can’t work.
(Slide): Outline of Presentation
1. Still working but starting to get sick.
2. Sick and cannot keep working.
3. Cannot work indefinitely.
4. Ready to try to work again.
5. Appeals and reviews.
6. Wrap-up and contacts.
Hi, my name is Renée Lang and I’m a staff lawyer at the HIV & AIDS Legal Clinic (Ontario).
Jill: And I’m Jill McNall. I’m the community legal worker at the HIV & AIDS Legal Clinic (Ontario). The HIV & AIDS Legal Clinic (Ontario) is also known as HALCO.
This video is to provide you with general information. It’s not legal advice. The laws and policies can and do change and they vary from province to province and territory to territory. So for specific program rules you need to get advice.
Renée: Now we’re going to talk about what happens if while you are working you start to feel a little bit less than par and you’re starting to be concerned about your work performance but you’re not entirely disabled yet. Your employer must accommodate your disabilities to the point of undue hardship.
What this means is if you are unable to perform your duties exactly as well as before and there is a slight or small thing that your employer can do like let you come in a little bit later and work a bit later, or have more frequent breaks, or longer breaks, or something of that nature, then your employer is required to do that. It's a right that you have under Human Rights Legislation.
So the first thing you do is you ask for this accommodation. Then if your employer says no, then you might need to negotiate something with them. There might be a process for you to ask a second time to like a supervisor or somebody like that. If that doesn’t work you can make a complaint to a Human Rights Commission or a Human Rights Tribunal, depending on what province or territory you are in.
Or you might be going to the Canadian Human Rights Commission which is what you would do if you are working for a federally regulated industry. You might not know whether or not you are working in a federally regulated industry so you can either call a Human Rights Commission and they will tell you who you should be complaining to or you can get some legal advice on that.
Renée: When you do make a request for accommodation to your employer you do not need to provide full medical information to them. For instance, you do not need to tell them that you have HIV. You only need to tell them what limitations that you have that are relevant to your work.
Jill: If you can’t do your job with reasonable accommodation, there are a number of other options. You might have sick time through your employer, you might have short-term disability benefits through your employer, there’s the federal Employment Insurance program, there’s provincial and territorial social assistance programs, there’s a variety of options. We’re going to talk about them.
Renée: Now we are going to talk about the situation where you are disabled from work but you’re not sure [for] how long. Your doctor is telling you that you have a return to work date and you might be ready to go to work but you don’t have any sick days available anymore. How are you going to pay your expenses?
(Slide): Types of Income Support/Benefits
You may have short-term disability benefits available through your work. If you do, these benefits will depend on what kind of contract you have between you and your employer, so your employment contract and they will depend on the insurance policy itself, which is an agreement between your employer and the insurance company. There may be laws that apply as well for insurance, that kind of thing, but most likely it will be the policy that will govern.
- Health benefits - drugs, dental, vision
- Sick leave
- “STD” – Short term disability benefits
- “LTD” – Long term disability benefits
There might be other circumstances to consider if you’re unionized, for instance, your collective agreement.
(Slide) Types of Income Support/Benefits
Short-term disability benefits could cover up to one hundred percent of your pre-disability income but will likely be less than that. Employment Insurance Sickness Benefits are around fifty five percent of your working wage up to a maximum amount.
- “CPP” Canada Pension Plan Disability benefits through the federal government
- “EI” Employment Insurance [federal government]
- Social Assistance benefits through your provincial/territorial government [may include health benefits]
Your employer might top this up, so you should talk to your employer about that if you’re in this situation. You need to have enough insurable hours to qualify for any kind of Employment Insurance Benefit and there is an extra subsidy available for low-income families with children.
Both Employment Insurance Sickness Benefits and short-term disability benefits are relatively easy to get with the support of your doctor. Your doctor just fills out a two-page form for either of these benefits. They’re both for a short duration. Short-term disability benefits will probably be for a maximum of four months but you’ll have to check the policy to see exactly how long they last. And Employment Insurance Sickness Benefits last a maximum of fifteen weeks and that starts after a two-week waiting period.
If you cannot get either short-term disability or Employment Insurance Sickness Benefits, then you will need to apply for provincial or territorial social assistance.
Now in terms of drug or health benefits, if you’re still an employee, then you will probably still get those through your employer.
Jill: If you aren’t getting health benefits through your employer, provincial and territorial governments have drug programs to assist people who have high drug costs relative to their income. You also might get a top-up if your employer’s plan doesn’t cover the full cost of your drugs. For example, if your employer only covers eighty percent, the provincial or territorial program could top up to help you with the balance of the cost.
Renée: Now we’re going to talk about what happens if you are disabled from work indefinitely. So your doctor is telling you that he or she does not know when you will be able to go back to work. So in this situation you would be collecting either long-term disability benefits, Canada Pension Plan Disability Benefits, or social assistance through the province or territory that you live in. You might be collecting one of these kinds of income supports, or you might actually be collecting a combination of several of them but they’re usually deductible from each other so it’s not likely you’ll get all three.
So in terms of getting the benefits, for long-term disability you apply through your employer. You don’t need to disclose all of your medical information other than the fact that you are disabled. So you get the forms, then you have your doctor fill out part of it, you fill out part of it and the forms go to the insurance company.
The standard for collecting this kind of benefit is total disability. They are tougher to get than short-term disability benefits and the definition of total disability will change after about two years typically on a typical long-term disability policy. This means that in the first two years the definition of total disability will be an inability to perform the essential duties of your own occupation and then after the two years it changes to the inability to perform the essential duties of any occupation. So this could mean that you are disabled from being for example, a lawyer that would be my own occupation but I might be able to be a file clerk which would be a completely different occupation but I might still be able to do that. So that would be very significant to the insurance company after two years.
The details of what benefits are offered are dependent on each policy. You’d have to look at your policy to see what you are getting. There is typically an elimination period that applies just at the beginning so that when you tell the insurance company: “I am disabled”, they will say: “fine, we’ll pay you after a certain period of time”. This is just to make sure that you really are disabled on a long-term basis.
There will also be exclusions, and I won’t get into all of those, you should look at your policy. And there will be very likely a pre-existing condition clause. Again I’m not going to go into detail about that but you might be thinking that because you have HIV you will automatically be excluded by a pre-existing condition clause and that is not necessarily the case. It depends on what kind of treatment you’ve received before becoming insured and when you became disabled. So get some advice and look at your policy on that.
Sometimes long-term disability benefits are taxable and sometimes they are not, you are going to have to talk to your insurer about that.
Jill: For Canada Pension Plan Disability Benefits, you need to have a disability that is considered to be severe and prolonged. You also have to have been working and contributing to the Canada Pension Plan (CPP) through your employment. You can see the CPP deduction on your pay stub. Your employer is also making payments to CPP for you. CPP starts after four months of disability, it’s similar to the elimination period Renée was talking about and CPP is for money only. It doesn’t include health benefits, or dental benefits or any other benefits and it’s also taxable. CPP has a child of a disabled contributor benefit (CPP Children’s Benefits) which you might access if you have dependent children.
Canada Pension Plan Disability benefits are available in all provinces and territories except Quebec. Please see the Government of Quebec website for information on the Quebec Pension Plan Disability benefit.
For provincial and territorial social assistance programs, you might want to contact your local AIDS Service Organization (ASO) for assistance in helping with the application. The programs will vary depending on the province or territory that you live in. Some provinces or territories have separate disability programs of social assistance and some don’t.
Renée: So while you are collecting some sort of income support for an indefinite period of disability, you are also going to be concerned with how you are going to pay for your drug and health benefits. If you are still employed at the time, employed but not getting your regular wage, so you’re on one of these income supports but you’re still technically an employee, you might still be getting your health benefits through your employer. However, your employer might decide to terminate you during this time. And by terminating I mean terminate your employment during this time, in order to stop paying for your health benefits. And that sounds kind of mean but it might happen anyway and they can do it if you’re not going to go back anytime soon and that information would come from your doctor. If that’s the case they will have to pay you, payment in lieu of notice or they will have to give you some notice that they’re going to do this. If that happens to you, do get some advice because you do have some rights.
Jill: If your employer does let you go or you don’t have benefits through your employer, as we mentioned the provinces and territories have drug programs to assist people who have high drug costs relative to their income. If you’re on your provincial or territorial social assistance program, the program likely includes drug benefits, dental benefits and other health benefits.
Renée: So while you are receiving benefits, there will be an obligation to report certain information to the provider of those benefits and what information you have to provide depends on who is providing them.
For long-term disability, insurance companies are mainly concerned with your ability to work full-time but they are also concerned with income from any source and with activities like part-time work, volunteer work, or school. They don’t care so much about assets or about how much other people in your household are receiving in income. You can receive long-term disability benefits anywhere, so it’s not limited to Ontario or any province or even Canada.
If you can’t return to work ever, your employer will likely stop your employment at this point. I’ve already talked about if that happens, you should get some advice. Long-term disability should continue for as long as you are disabled even if your employer does terminate your employment, so you will still have those benefits available to you. You will lose your health benefits if your employer terminates your employment but you will likely be given the option to convert some of your benefits like life insurance into a private policy. Life insurance is something that is very difficult if not impossible for someone with HIV to get just as a private buyer of insurance. But it tends to be part of a group insurance package. There will be a deadline, so pay attention to the deadline to do that.
Jill: The Canada Pension Plan Disability program is mainly concerned with your ability to be employed, so they are concerned with your disability and how it affects your ability to be employed. So they are going to be concerned about any work that you are doing, any activities that you are involved with like school or training, if you completed a training program, if you complete your education, a degree, etc. They are going to be concerned about that and that could affect your benefits. They also could review your eligibility at any time although routinely they don’t. It tends to be after two years they may contact you for an update.
Generally you can earn up to four thousand seven hundred dollars before Canada Pension Disability will consider terminating your benefits, or if you’ve worked for up to three months. That’s a 2010 figure; it does change from year to year.
Canada Pension Disability is not concerned about who else is in your household, other than if you have dependent children and they are not concerned with your assets or anything like that. They are concerned with your ability to work and your disability.
Now, the provincial and territorial social assistance programs, they are going to be concerned about just about everything about you and about your household –that’s generally assistance for the household. So they are going to want to know who are you living with, the income, the assets, the activities of everybody living there — they require a lot of information. And you’ll normally need to keep giving them information about your continuing disability as well, to show that you continue to be eligible for the program.
Social assistance is an income of last resort, which means that they expect you to try and get anything else first and if you are able to get anything else, they usually deduct that from your social assistance entitlement.
A tip for dealing with all of the benefit providers — if they ask you for information, generally you should give it to them. If you think the information isn’t relevant then you want to get advice. Try and be nice even if you’re feeling angry or scared or frustrated. As we mentioned earlier, the programs are run by people, so you’re going to be interacting with people and you want to try to have them on your side.
(Slide) Keeping Records
Keep notes of your phone conversations and meetings with them, keep copies of any information that you give to them, keep letters that they send to you. Keep good records – it will really help you in dealing with the benefit provider.
- Make and keep copies of any documents that you submit to any program.
- Keep letters, benefit statements, etc.
- Make notes about conversations, meetings, etc.
Renée: Now we're going to talk about a situation where you have been disabled for a while and off work and you are considering going back to work.
Each kind of benefit that we’ve been talking about has a kind of rapid re-instatement and usually some kind of employment incentives or supports. So for long-term disability there will be some kind of clause. It might called a ‘continuation of disability clause’ or something like that. I can't really tell you what it will say because every policy says something different and calls it something different but what is consistent from one policy to another is — there will be something that makes it easy to go back to work and to try going back to work and then to get back on benefits pretty fast if it turns out that you are still disabled from the same disability.
The amount of time that you would have to experiment with a back-to-work will vary from policy to policy so have a look at your policy. Most insurance policies also have a rehabilitation clause and this will be mandatory so your insurer might say: “We want you to do this particular kind of rehabilitation” and it will be a condition of you continuing to get benefits to do this rehabilitation that they ask you to do.
Some insurance policies also have a provision for employment training but this will not be something like getting a university degree. What they will pay for is something like skills training or upgrading. Now, if you’re trying to go back to work, get a letter from your doctor but make sure that the language is very cautious. Make sure that your doctor says you are attempting to go back to work, or that they support an attempt to go back to work, rather than you for sure can go back to work because then the insurance company might use this to say that you are not disabled. Certainly get legal advice before any attempt to go back to work.
Jill: For Canada Pension Plan Disability there is also a rapid reinstatement process, so if you try to work and you find that you aren’t able to, if you’re still disabled with the same disability, or a related disability, you can get your CPP Benefits started again relatively quickly.
Now, CPP also has a Vocational Rehabilitation Program. It’s a program to assist people with upgrading, retraining, those kinds of things but there is a caution about that program because if you successfully complete the program and you are not able to find a job during the job-search period, at the end of that job search period your Canada Pension Plan Benefits will end even if you don’t have a job.
In terms of the provincial and territorial social assistance programs, they will likely have a rapid reinstatement provision as well because they do want to try and encourage you to try working and encourage you to try and get back to work. They also might have employment supports and incentives to encourage you to try working. For example, rather than deducting your full income from employment, they might deduct a part of it from your benefits.
Renée: Now we’re going to talk about appeals and reviews of decisions that you don’t like that the provider of your income support might be making.
So for long-term disability insurance most insurance companies have internal appeal procedures. Pay attention to any deadlines that they state in letters. They can extend them if they want to but you have to ask them before the deadline expires.
There is also a regulatory body overseeing insurance companies and these are also provincial or territorial in scope, so you will have to check with a lawyer or get some other advice to find out what that regulatory body is.
For Canada Pension Plan Disability, if you are denied coverage or if your coverage is terminated, you can request a reconsideration. If that is denied, you can request a review with the Canada Pension Review Tribunal. And if that is denied, you can appeal to the Pension Appeals Board. There are deadlines for each of these kinds of appeals, reviews and reconsiderations. They will always be stated in the letter that denies you the benefit, so make sure you pay attention to the deadline in the letter.
If you are on provincial or territorial social assistance, the people who are providing this assistance to you will make all kinds of decisions about you and about your benefits. You might get a letter about one of these decisions or you might not. It might be that your benefits suddenly are a different amount one month. If you do get a letter, your letter will state what the deadline is to appeal this decision. So pay attention to that deadline. If it’s just suddenly a surprise to you – your amount on your stub is different than the month before and you don’t know why, then you will have to call your worker and if you cannot resolve that then you will have to seek some assistance either through whatever legal supports you have available to you or you might want to start with your AIDS service organization.
Jill: There are other ways to deal with government action or inaction depending on the issue.
(Slide) Other Help
You might contact your local politician. For example, for Canada Pension Disability, if you are having issues with Canada Pension Disability you can contact your federal Member of Parliament they may be able to assist you. For your provincial or territorial social assistance you can contact the provincial or territorial representative, it might be the Member of Provincial Parliament or a Member of the Legislative Assembly.
- Local government representatives [federal Member of Parliament or provincial/territorial government representatives]
- Ombudspersons [insurance or government]
Most provinces and territories and the federal government have an ombudsperson, who is someone who tries to resolve problems when there is an issue between a government service and an individual. You can contact your local AIDS service organization for advice about who else you might be able to get advice from, they also may be able to assist you in trying to negotiate. They may also be able to refer you to your local lawyer referral program or your provincial legal aid program, if you have one.
(Slide) Other Help
Another source of assistance could be your union if you are in unionized employment.
- AIDS Service Organizations
- Provincial Legal Aid programs
- Local lawyer referral programs
- Insurance Regulatory bodies
- Union [if you are unionized]
As Renée mentioned, there are time limits and deadlines for all of these things so it’s very important that you get advice immediately. It’s also really important to keep those records as we mentioned earlier because that’s going to be vital, especially if you’re having a problem with a program, you need to make sure that you are monitoring your mail and keeping everything.
Renée: This has been a very quick overview of income supports available to people who are unable to work. Please note that the factors discussed here are especially relevant to people living with HIV. There may be other factors for you to consider.
You can look for additional supports by contacting a local employment counsellor or income support specialist near you. Residents of Ontario can contact HALCO and you can visit our website at www.halco.org. Thank you!
(Slide) Getting Help
If you live in Ontario, you can contact HIV & AIDS Legal Clinic (Ontario) –
(Slide) Getting Help