Lawyer predicts a rise in disability claims and people pursuing jobs that allow hybrid work
Working from home during the pandemic allowed many employees to get away from toxic work cultures that caused stress and increased anxiety. Therefore, as provinces reopen their economies and employers start demanding employees return to work, personal injury lawyer Nainesh Kotak predicts a potential rise in disability claims as people return to previous unhealthy environments.
Kotak says lawyers will see more requests for stress relief and an increase in disability claims arising out of anger and anxiety.
“At the beginning of the pandemic, there was a lot of fear and stress from people contracting COVID. We may see the same happen again with employees not being able to manage any pre-existing anxiety getting back into the workforce.”
Kotak says employees with a group policy under the employment contract can apply for short or long-term disability benefits if they establish that they cannot perform the essential tasks of their employment due to anxiety. However, he says disability insurers often deny mental health claims because they are subjective and challenging to prove, unlike physical disability claims that frequently arise when an issue shows in an MRI, X-ray, or CT scan.
When dealing with mental illness, particularly anxiety and depression, insurance companies often say there is insufficient medical evidence, Kotak says. “We may undoubtedly see an increase in disability claims and an increase in the denial of both claims.”
Employers are legally empowered to dictate a place of employment and ask workers to return to the workplace unless a contract states that an employee can work from home. However, Kotak says employers cannot force employees to return to work in an environment with health and safety hazards.
“There may be new employees who have a hybrid or remote working arrangement in their employment contract, and an employer would likely be amiss if they tried to change the terms of the employment contract.”
Employees could argue that returning to the office and exposing themselves to COVID violates the Human Rights Code. Still, Kotak says employers can say that there is no remote position for workers anymore, and health considerations are accounted for in the workplace.
He says employers should consider the current demand for workers and that employees may quit and seek employment elsewhere if their workplaces do not accommodate their concerns.
Kotak says that employers must decide between having employees return to the office or losing workers to another company who may be allowing a remote or hybrid work.
“Given that employers are having difficulty retaining and securing new employees, will they have to do more to accommodate their employees to retain the talent?” he asks. For example, “are they going to rely strictly on their legal rights of ‘I can make you come back to work?’ Or are they going to take a more business approach that ‘we want to keep our key employees and make them happy?’”
Kotak says that thinking outside the box, being proactive, and acting responsibly to retain quality employees are crucial for employers in the current job market.