This week, we’re talking all about an important element of employment law: short-term disability (STD). Jill tries her best not to giggle at unfortunate acronyms. Often referred to as “stress leave”, short-term disability allows employees to take a temporary leave from their job if they are unable to work, for a variety of reasons. Our hosts discuss examples of situations in which employees might need to access the benefit, how specific workplaces policies can interact with STD, and the process of applying for STD.

Full transcript below:

Narrator: This podcast is produced by Nelligan Law.

Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect real people.

Jill Lewis: And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.

Dana DuPerron: Welcome to All Worked Up. I’m Dana.

Jill Lewis: I’m Jill!

Dana DuPerron: Jill? What’s got us all worked up today?

Jill Lewis: We are so worked up about STDs.

Dana DuPerron: Dah, dah, dah. [laughs] Ahhh …

Jill Lewis: I’m an 8 year-old, I’m sorry.

Dana DuPerron: So what do you mean by that, Jill?

Jill Lewis: STD? Short-term disability.

Dana DuPerron: There you go. Sorry guys.

Jill Lewis: Yeah, I’ve told you before we try not to use too many acronyms but other than ESA, for the Employment Standards Act, STD, LTD are ones that we use a lot. Short-term disability, long-term disability. We’re going to use those throughout the episode so I’m going to try not to giggle every single time.

Dana DuPerron: Yeah.

Jill Lewis: Yeah, so we’re going to break these episodes. We’re going to do short-term disability; in the next episode we’ll do long-term disability, so just things that you should be aware of before you’re applying or what to look for and how to appeal. So short-term disability, OK, where do we want to start? I mean most, some employers have their own short-term disability policy where they may provide you with compensation during your short-term disability leave that could range from like 100% top-up – not usually. Or maybe the first six weeks paid and then they’ll pay 60% or something like that. Sometimes the employer pays it; sometimes the insurance company pays it.

Otherwise, if your employer does not have short-term disability you can access EI sick benefits. That’ll be your only option. So maybe we should talk about why you would want to access short-term disability.

Dana DuPerron: Yeah, so we’re talking about short-term disability. It’s either because you have something that’s stopping you from being able to work and it’s only in the short term, so maybe you need surgery. You know, like a temporary – like you get it, you’ve got to recover, you’re good, you go back. Maybe you are pregnant and you’re going on maternity leave, so you’re not going to be disabled for a long time. But at the end of your pregnancy you can’t work. You’re too unwell to work. Or at the beginning of your pregnancy you have, you’re very sick or something but it hopefully doesn’t last the whole time and you just need a brief period. That can be where you need to access short-term disability.

Or it says for longer-term illnesses there’s usually a waiting period to access long-term disability, LTD. And then if you have coverage for STD you access that first. Or EI sick benefits, as you said. But I think the max EI sick benefits – ooh, what happened to my voice?

Jill Lewis: I don’t know. Where did it go?

Dana DuPerron: I don’t know – is 15 weeks.

Jill Lewis: Fifteen weeks for sick benefits.

Dana DuPerron: Yes, fifteen weeks for sick benefits; it’s the same coverage as EI, right?

Jill Lewis: Yeah.

Dana DuPerron: So now just over $500 bucks a week-ish, max.

Jill Lewis: Max, yeah. So EI sick benefits, you’re going to need a medical note if you want to access your short-term disability. Usually most people will try and use up their sick days if they have paid sick days. You get sick days through your work. So if you’re in that position, like maybe you’ve got a surgery coming up, or if you have become very ill or if – we do see a lot of people who – they call it stress leave. People like to call it stress leave, but you have to be careful using that phrase because stress is not a medical condition.

So you can’t – you have to be careful going to your doctor and asking for a note to be put on stress leave, because I’ve certainly seen insurance companies deny employees whose doctor notes say, “This person has to be off for eight weeks due to stress.” Because it’s not quite – I haven’t seen it as much where it’s just that they stay stressed. I see the bigger issue where they say, “Because of the workplace.”

Dana DuPerron: Or because of the workplace.

Jill Lewis: And then they’re like, “OK, go work somewhere else.  You’re not that sick.” Deny, yeah. OK, so the first step is look into make your doctor’s appointment if you’re feeling sick.

Dana DuPerron: Yeah, if you feel sick at all, doctor’s appointment.

Jill Lewis: Go see your doctor, but also in the meantime check your policy. A lot of people don’t know what they’re entitled to so check your plan, ask HR, “What’s our short-term disability leave like?” or just look it up in the handbook. If you don’t have STD and you don’t have sick days, sometimes employers also will not let you take your vacation days when you’re sick. Some don’t, so that’s something else to look at too.

Dana DuPerron: Right, right.

Jill Lewis: Some are like, “Sure, whatever. Use whatever leave, paid leave you’ve got to bridge that gap.” Some, not so much, and it’s going to depend on what the policies are there because they want you to keep your vacation time for when you’re on vacation, and not use it for sick leave.

Dana DuPerron: Yeah, yeah. Good point.

Jill Lewis: So it depends. But yeah, so that’s step – doctor?

Dana DuPerron: Yeah.

Jill Lewis: Figure out what coverage you have. Then we see the doctor. Obviously you want to divulge everything to you doctor. You want to have that open power station. Sometimes doctors don’t always fill out the forms properly. Like I had a doctor – you’ll remember this, when I got out of a doctor’s appointment – I was 37 weeks pregnant and she was like, “You’re off. There’s no way you could go back to work” and wrote pregnant on my thing. And I came out, looked at it and just started crying and [unintelligible 00:05:28]. We were just like, “That’s not a medical condition, pregnant.” It has to be more like, well, could just be for health reasons but if you’re filling out those forms it has to be what are the actual symptoms? Like the anxiety or sleep fatigue, –

Dana DuPerron: Yeah, insomnia, lack of focus, yeah. Inability to focus, pain. Pain if you can’t sit or walk or anything, if you have to be lying down all the time or whatever.

Jill Lewis: Yeah.

Dana DuPerron: It can be. That’s where it can be stress or whatever. I had blood pressure issues with pregnancy where eventually towards the end it was like, “OK, you can’t be dealing with anything because you need to just be doing nothing.” So yeah.

Jill Lewis: What I usually tell people – and sometimes we even get a chance to talk to doctors, not to influence what they’re going to say but just to let them know what insurance companies are looking for – they’re not looking for the cause, right? They’re looking for the condition that flows from it and the symptoms.

Dana DuPerron: Exactly, symptoms and possible prognosis, right?

Jill Lewis: Yeah, yeah.

Dana DuPerron: So get cause out of – I think that’s what I was getting to is a lot of times people put the cause in there, so workplace. “This person has to stay off due to workplace issues,” yeah.

Jill Lewis: No, no! Oh my gosh, no. Please don’t ever put that, because that is just welcoming an insurance company to say, “Denied!”

Dana DuPerron: When it’s not about the work, but it’s not – regardless of what the cause is it’s not this workplace, it’s that now you are sick and you cannot work.

Jill Lewis: Exactly.

Dana DuPerron: Why? Can’t you work?

Jill Lewis: Why? Why can’t you work?

Dana DuPerron: With that why not being because this workplace is bad, but being because they can’t focus, they have headaches, they have stress, anxiety, depression, whatever it is. And as you say, sometimes you need more on the stress piece. Whatever, I’m not a doctor but whatever you need to put in there, so yeah.

Jill Lewis: Raise that with your doctor; just let them know. And doctors just sometimes aren’t as aware that people may get denied for things like that. Or if you say workplace, some insurers or employers are like, “Oh, well then this is a WSIB issue. You’re ill because of the workplace.” WSIB, we should do an episode on that, workplace safety. That should be under a WSIB and you do not want to go down that road. So anyways, that’s just – get cause out of there. Just ask your doctor to make sure that they’re very specific about the symptoms and the possible prognosis.

And so then you’ll apply. You’ll usually apply to an insurance company and the insurer may just make the decision for the employer. The employer might keep paying you for a while, or it’s the insurance company themselves. And cooperate with the insurance company, like the claims managers. They’re not all bad. You know, sometimes they call you, just looking for more information. Insurance companies are in the business of paying out money, believe it or not. So it’s like the insurance company is not necessarily your friend, right? But there are obligations under the policy to provide the information that they’re requesting, so you’re going to have to do that or you’re going to be denied. And that’s where you want to make sure that you’re getting the right information there about what your actual condition symptoms, inability to work is prompted by.

And as unfortunate as it is, I’ve generally found, and not across the board – I don’t want to say that it’s always the case but they are more likely with physical things to approve than – there is still, oh yeah, a major stigma around health issues.

Dana DuPerron: And that doesn’t mean don’t apply, it might mean speak to someone first about what you should be making sure is in there to help bolster your case. Or same thing if you’re denied, what can you do to change that?

Jill Lewis: Yes. Yeah, so oftentimes we do have people that come to us who’ve been denied and we help them with their appeal. So there is usually an internal appeal process with the insurance company. Sometimes they have tighter timelines though, so be really aware of that. As soon as you’ve gotten that denial letter go talk to somebody right away, because sometimes it’s 30, 60 days. Sometimes they’re tight.

Dana DuPerron: And it doesn’t matter. If you don’t meet that deadline that doesn’t mean you can’t sue.

Jill Lewis: Yeah, yeah.

Dana DuPerron: Don’t think – you can still sue for breach of contract and stuff. It’s not like, “Well, I didn’t meet that deadline so that’s it. I’m out of luck.” But yeah, be aware of them and talk to someone. If you’re ultimately not going to need long-term disability, the loss is smaller but it’s still a loss if you don’t have pay and you’re expecting to have pay during a certain time.

And another thing that I always talk to people about, and something worth considering, is the application for STD after your employment ends. I think we’ve talked and touched on it briefly before, but your employment’s terminated. I can’t tell you how many people I’ve had come to see me and be like, “My employment was terminated because I was sick. And maybe the employer didn’t realize that but I wasn’t doing a good job because I was in such a terrible place, and I shouldn’t have been working.” And in that case, the quicker you act the better. But you usually still have coverage for STD through the statutory notice period, which is up to eight weeks. And if you can get that application in and get approved and get benefits flowing, you could have coverage through the LTD period as well, even if your employment has ended. So something to think about.

Jill Lewis: Yeah, and that’s huge. And we’ll get to that in the next episode because LTD could go until you’re 65.

Dana DuPerron: Yeah, or depending – yeah, or longer.

Jill Lewis: So that’s really important. So we always tell people after they’ve been fired – we’ve pretty much gotten into the routine of asking people if they’ve seen their doctor.

Dana DuPerron: Yeah, it depends on –

Jill Lewis: Just like –

Dana DuPerron: I always say, “Any health concerns? Anything that could stop you that either affected your ability to work or that would stop you from looking for other work?” And if there’s any sort of hesitation there I usually suggest talking to their doctor. Some people are like, “No,” which is fine.

Jill Lewis: Yeah, like absolutely not.

Dana DuPerron: Yeah, there might not be, but yeah.

Jill Lewis: But you may not think about it. Go see your doctor because you may only have a few weeks of that coverage, and then forms can be still, they can still put a retroactive date that they should have been off as of this date, but if it can all be done while you’re still covered it’s so helpful.

Dana DuPerron: Yeah, yeah.

Jill Lewis: But yeah, that’s short-term disability.

Dana DuPerron: Yeah, so lots to think about there. It is a big important piece kind of of what we do. And what I always tell people also is health comes first. I know we talk about employment law, we talk about your job, but your health is the most important. And so that’s often – if you come in with a whole whack of other things, that’s often where we start.

Jill Lewis: Absolutely.

Dana DuPerron: And then focus on that, and we’ll go from there. We can help you come up with a plan for next steps.

Jill Lewis: Alright. Well, that’s short-term. That’s STDs!

Dana DuPerron: Yeah, join us next week for LTD!

Jill Lewis: Bye.

Dana DuPerron: Bye!

[End of recorded material 00:12:07]


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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