KFActs: Accommodations, Short-Term Disability, and Manulife

By Rachelle Hollaway, Member-at-Large

This article will help you understand the role that Manulife plays in some accommodation requests and all Short-Term Disability claims. For general information about 30 days’ sick leave, short-term disability, and long-term disability, please read “What If I Get Sick? Sick Leave, and Short-term and Long-term Disability Leaves.”

Accommodations

You have rights under the British Columbia Human Rights Code for accommodations:

13   (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

The following is from the BC Human Rights Tribunal:

The Human Rights Code forbids discrimination in employment. Discrimination is poor treatment, based on a personal characteristic. If the person can justify the poor treatment, then there is no discrimination. The Code protects you in employment based on these personal characteristics.

Employers and others have a duty not to discriminate regarding employment. This includes a duty to take all reasonable steps to avoid a negative effect based on a personal characteristic. This is called the duty to accommodate.

When you request an accommodation, your dean may direct you to KPU’s Health and Benefits division. Health and Benefits may subsequently direct you to Manulife.

As part of the accommodation process, you will be asked to provide information about your situation and the type of accommodation you are requesting. While you are never required to share private medical information with any employer, including KPU, if you are seeking an accommodation, you will need to provide sufficient medical information for the Employer to understand your restrictions and limitations related to your job duties. Health and Benefits may also request Manulife to assist in accommodation requests. In these cases, Manulife will ask your doctor to submit forms that will include diagnoses. Your doctor may be required to submit further diagnostic information and clinical notes.

The KFA has filed a grievance on aspects of the accommodations process. Our goal is that the parties come to an agreement on a legally sound, fair, and dignified accommodations process.

When you initiate the accommodation process, your dean or your Health and Benefits representative may not tell you to contact the KFA. However, it is crucial that you do so. A KFA Table Officer can help you navigate Manulife’s processes. For example, Manulife may contact you to ask how you are doing. This may seem like a friendly conversation to get to know you, but the conversation serves as an intake interview that is cross-referenced against the medical documents submitted by your doctor. A KFA Table Officer can help you understand the purpose of these interactions. If your accommodation is denied, a Table Officer can also help you with the appeals process.

Short Term Disability Benefits

You have access to 30 days of sick leave paid at 100% by KPU. If your medical condition is such that you may be unable to work for longer than 30 days, it is important to begin the application process with Manulife for Short Term Disability coverage within the first two weeks of your 30 days sick leave coverage.

If you indicate to your dean or Health and Benefits representative that you think you will need more than 30 days, and you begin the process of completing the Manulife forms (from yourself and from your doctor), then your Health and Benefits representative will pair you with a KFA representative from the Faculty Joint Rehabilitation Committee (FJRC).

It is very important to meet with your KFA FJRC representative before you talk with Manulife. As mentioned above, your case manager may ask you several questions that seem like a friendly way to get to know you better, but this conversation serves as an intake interview that is cross-refenced against the medical documentation submitted by your doctor. Be sure to ask your KFA faculty rep about how to navigate this intake interview and other paperwork required while applying for Short-Term Disability. This will help reduce the chances that your claim is denied by Manulife. If your claim is denied by Manulife, then your KFA FJRC representative will help you through the appeals process.

The crucial point to remember is that once Manulife is involved, you need to have a union representative help you through the process, whether that be a Table Officer for an accommodation or a KFA Faculty Joint Rehabilitation representative for an application for short-term disability coverage.

If you have any questions about Manulife, sick leaves, or short or long-term disability coverage, please contact the KFA.

KFActs: Working Post-65 and Benefits Coverage

By Rachelle Hollaway, Member-at-Large

It is becoming more common for faculty members to work past the traditional age of retirement. While the majority of benefits remain the same, faculty members who choose to work past the age of 65 face a reduction in some benefits.

The table below is an excerpt from the Faculty Benefit Summary Sheet, found in the Resources section of the KFA website.

As you can see, the sections highlighted in yellow reflect the changes in benefits coverage faculty can expect when they turn 65, 70, and 71.

Life Insurance

At age 65, your life insurance will reduce from 3 x your annual earnings to 1 x your annual earnings up until the termination age of 71. The maximum coverage remains the same.

Accidental Death and Dismemberment

At age 65, your accidental death and dismemberment insurance will reduce from 3 x your annual earnings to 1 x your annual earnings up until the termination age of 71. The maximum coverage remains the same.

The optional insurance plans offered by Manulife also have a termination age of 71.

Sick Leave

All faculty members, regardless of age, are entitled to 30 days of sick leave paid at 100% of your current salary. You may take more than one 30-day period of sick leave for different reasons. For example, if you are in a car accident and you need time to recover, you have access to 30 days. If you then become ill for any other reason outside of the car accident, you have coverage for another thirty days. The Employer may require medical documentation for any sick leave coverage, regardless of your age or medical ailment.

Short-Term Disability

If you think you may be ill for longer than 30 days, and you are under the age of 70, you may apply for short-term disability coverage through Manulife. Short-term disability coverage lasts for up to 21 weeks and is paid at 70% of your current salary. If you turn 70 while collecting short-term disability, your coverage can extend for the full 21 weeks. For example, if the date of disability is March 1, you will become eligible for short-term disability coverage on March 31 (after 30 days of sick leave). If you turn 70 on April 15, and you remain unable to work the entire time, your short-term disability coverage will extend to August 26. If you are unable to return to work on August 27, you have the option of going on a leave without pay until you recover.

If you are over the age of 70 and you become ill, you have the option of going on a leave without pay after your 30 days of sick leave coverage ends.

Long-Term Disability

If you are under the age of 65, you have access to long-term disability coverage after your short-term disability coverage has ended. Long-term disability coverage lasts until you turn 65 and is paid at 70% of your current salary. If you turn 65 while collecting long-term disability payments, your coverage will end at the end of your birthday month. For example, if Manulife is providing long-term disability coverage for you and you turn 65 on April 15, your coverage will end on April 30. If you are unable to return to work on May 1, you have the option of going on a leave without pay until you recover. You may also elect to retire.

For more information about leaves, please read the following:

Cautions and Caveats About Taking Leaves: Part 1

Cautions and Caveats About Taking Leaves: Part II: Unpaid Leaves & Benefit Coverage

College Pension Plan

From the College Pension Plan: “If your long-term disability benefits are provided by a group disability plan approved for pension purposes, you will continue to accumulate pensionable and contributory service while you are away from work. In this case, you do not need to buy [back] service. If your long-term disability benefits are provided by a group disability plan not approved for pension purposes, you may be able to buy service when you return to work.” You also continue to accumulate pensionable and contributory service during  a 30-day sick leave and short-term disability leave.

One year of pensionable service adds about 3% to your monthly pension. This amount is not based on the total amount invested in your pension but the number of years of contributory service and your five best years of income during that service.

If you work post-65, you continue to contribute to your pension until November 30 of the year you turn 71. For example, if you turn 71 in May, your contributions to your pension will continue until November 30. You can then draw your pension on December 1 and continue to work. The College Pension Plan will mail information to you regarding the above in the year you turn 71. They will encourage you to complete the paperwork required to draw your pension and thus be paid your monthly pension amount. If you do not fill out this paperwork, you will not draw your pension until the paperwork is completed.

The Future of Post-65 Benefits Coverage

Over the years, the unfair coverage of benefits for those over 65 has been challenged, and the issue has been addressed several times via the courts. In 1992, the issue was brought to the Supreme Court: Zurich Insurance Co. v. Ontario Human Rights Commission. The case established the rights of organizations, businesses, and governments to discriminate based on age categories for reasonable and bona fide rationales of undue hardship. In the case of insurance companies and the Canadian government, short-term and long-term benefits coverage can be denied to those over the age of 65 since providing this coverage would cause “substantial interference with a service provider’s business enterprise” (Council of Canadians with Disabilities v. VIA Rail Canada Inc, 2007 (703)). As cited in Via Rail, 2007, the onus of proving undue hardship falls on the organization involved:

A service provider’s capacity to shift and recover costs throughout its operation will lessen the likelihood that undue hardship will be established: Howard v. University of British Columbia (1993), 18 C.H.R.R. D/353 (B.C.C.H.R.). Other relevant factors include the impact and availability of external funding, including tax deductions (Brock v. Tarrant Film Factory Ltd. (2000), 37 C.H.R.R. D/305 (Ont. Bd. Inq.)); the likelihood that bearing the net cost would threaten the survival of the enterprise or alter its essential character (Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (Ont. Bd. Inq.)); and whether new barriers were erected when affordable, accessibility-enhancing alternatives were available (Maine Human Rights Commission v. City of South Portland, 508 A.2d 948 (Me. 1986), at pp. 956-57). (703)

In BC, two cases have been brought to the BC Human Rights Tribunal against employers and insurance companies for discriminating against employees who are over the age of 65: Jones obo others v. Coast Mountain Bus Company and others, 2014 BCHRT 166 and Johnston obo others v. City of Vancouver (No. 2), 2015 BCHRT 90.

Both complaints were dismissed by the BCHRT. In Johnston v. City of Vancouver, the rationale for dismissal is as follows:

On the material before me, limiting eligibility for participation in the Disability Plan to those under the age of 65 is a “common, accepted and established practice” with respect to long-term disability benefits in Canada. The material on the file, in my view, establishes that the plan was adopted in good faith by both the City and the Union and there is nothing in the material that remotely suggests that the plan was implemented for the purpose of defeating protected rights. The age exemption, which the Complainant asserts is discriminatory, has been in place long before its insertion in a plan would have been necessary in order to defeat protected rights because, when the age exemption was first inserted in the Disability Plan, the definition of age in the Code still ceased at age 65. In any event, there is no evidence in the material before me to support that a motive for the age exemption in this plan was to defeat protected rights. (14)

Recently in Ontario, a grievance was successful because the insurance company was unable to demonstrate undue hardship. In Talos v. Grand Erie District School Board, 2018 HRTO 680, rights to prescription drug coverage were won for post-65 teachers because only 2-3% of teachers were over the age of 65, and the School Board could not provide evidence that coverage would have caused operational harm. While Talos’ claim did not include short or long-term disability coverage, the HRTO found, “The actuarial evidence presented in this matter made it clear that there are reasonable ways to protect older workers from discrimination in relation to workplace benefits, while protecting employers from the expense of unduly costly healthcare benefits and life insurance plans” (86).

Currently, a grievance has been filed by the Okanagan College Faculty Association concerning the rights of post-65 benefits coverage. The grievance is considered to be precedent setting and is therefore taking longer than usual (the average for arbitration proceedings is two years). The details of the arbitration are not yet publicly accessible, and the KFA is not privy to the legal arguments being tested.

It remains to be seen how the Okanagan College Faculty Association grievance will play out. Hopefully, access to fair benefits coverage will be provided to post-65 faculty in the near future. In the meantime, your KFA is bringing post-65 benefits to the bargaining table as per the will of our membership in the last bargaining survey. The KFA will also provide updates on this important case as more information becomes available.

As always, if you have any questions about this topic or any other concerns, please contact your KFA.

KFActs: Important Information about Overpayments

By Rachelle Hollaway, Member-at-Large

Over the past few years, several faculty members have been asked to pay back money due to overpayment errors. Some common errors include workload percentage errors, leave calculation errors, additional work contract errors, benefit overpayments and so on.

Many faculty members have had money deducted from their pay without knowledge or consent.

If someone in HR or Payroll has contacted you about an overpayment or has told you that money will be deducted from your pay, please contact me at rachelle.hollaway@kpu.ca. There may be significant calculation errors in the amount you are being asked to pay back. You also have important rights under the Employment Standards Act (ESA) that HR must uphold.

Section 21 of the Employment Standards Act explains that employers “must not, directly or indirectly, withhold, deduct or require payment of all or part of an employee’s wages for any purpose.”

On the surface, section 21 of the ESA seems to imply that errors made in pay are not recoverable by the employer. However, this clause has been tested by the courts in Health Employers Assn. of B.C. v. B.C. Nurses’ Union, 2005 BCCA 343. In that case, the Court of Appeal wrote:

“The employer is still able to recover overpayments from employees where that employee agrees to the deductions, or where a statute or collective agreement expressly authorizes the employer’s unilateral action. Where no such agreement or statutory authorization exists, the employer has the option of recovering overpayments in other ways such as pursuing a grievance, or bringing a claim against the employee (para 67).”

This means that the employer must seek the consent of an employee to pay back any monies owed. If the employee does not consent, the employer has the right to grieve the employee through its union and/or garnishee the employee’s wages via the courts.

Many people assume that an error made by someone in payroll means that an employee should not have to pay back any money, especially as some of the amounts can be quite high. Unfortunately, this is not the case, and the employee must pay back the amount or else risk court proceedings that can result in garnisheed wages. That being said, you have the right to choose how you want to pay back any amount owing: lump sum, monthly payments over months or years, and so on.

The KFA has worked with our Employer (ER) to create a process that preserves the rights of faculty under the ESA. While this process is sometimes followed, there are often errors and omissions in that process. Further, the Employer has sent faculty members Overpayment Letters without copying the KFA.

Here is what is supposed to happen:

1. The faculty member receives an Alert Letter about an overpayment. The Alert Letter is cc’d to the KFA, and the letter explains that the faculty member needs to work with the KFA to resolve the overpayment. The KFA is involved as exclusive bargaining agent in any decisions regarding pay. In other words, your KFA representatives are your legal representatives in discussions of pay with the Employer.
2. The faculty member receives an official Overpayment Letter with an explanation and breakdown of the amount owed and a Consent Letter. The faculty member is asked to consult with their KFA rep, decide on a repayment schedule, and sign a consent letter allowing the ER to deduct money from their pay. The KFA, as exclusive bargaining agent, must also sign the consent letter.

Since this process began, the KFA has found consistent errors in the Employer’s requests for overpayments. In some instances, it is found that the faculty member is actually owed money.

The truth is that the vast majority of overpayment requests from the Employer have been calculated incorrectly. For that reason, we ask that you contact us if you have been sent an Alert Letter or an Overpayment Letter and the KFA was not cc’d on that correspondence.

If you have any concerns at all about the above or any other overpayment issue, please don’t hesitate to contact rachelle.hollaway@kpu.ca.