Disability Blog

Why won’t my union fight for me?

Since the first union in Canada was established in Toronto back in 1872, countless others have sprung up over the years. Today, hundreds of unions exist in Canada alone, representing workers from most industries and types of work. It’s estimated that roughly 30% of Canadian workers belong to a union. 

Joining a union does have its benefits. Being a member of a union means enjoying the same benefits and working conditions as your colleagues, as well as having a sense of belonging and membership. Knowing that you are working towards the same collective goals as your colleagues contributes to a sense of camaraderie and emotional support as well, which can be important for some individuals. 

However, there are situations where the union cannot – or will choose not to – help, including cases where people with disability are fighting with insurance companies for long-term disability benefits. As a union member, you might expect that a union would fight on their behalf but, due to a host of reasons, including expertise, unfortunately, many union members have had disappointing experiences when entering the disability law arena. 

If you have a disability and have been denied disability benefits, reach out to speak with Lalande Disability Lawyers today. Since 2003, Hamilton Disability Lawyer Matt Lalande has recovered millions for the disabled people throughout Ontario who have been wrongfully denied or cut off their long-term disability benefits. 

The basics of unions

To understand why unions exist in the first place, let’s think about what the organizational structure looks like in a non-unionized company. 

In a non-unionized company, the employer sets the working conditions within the guidelines of what is legal in Ontario and presents the conditions to a potential employee. The employee decides for themself if they want to work at the company or not. The employee makes decisions about their working conditions by themself, representing themself in any discussion about the job with the company. 

With few exceptions, this gives employers a significant advantage of knowledge and experience when it comes to negotiating terms of employment. Most employees are trained in their area of specialty, rather than in labour law. It can be intimidating for any working adult who is presented with legal documents to have to think for themselves and make decisions that may impact their professional future.

In a unionized company, any working agreement or contract that the employer has with their employees has been negotiated and voted on by the union, an elected group of people that working employees of a particular industry or company have chosen to represent them in negotiations with the company. Unions work to secure the most positive working conditions for the workers they represent. While companies only have to ensure that they meet the legal minimum in terms of workers’ benefits and wages, unions negotiate for collective agreements between employers and employees, an agreed-upon level of pay and benefits higher than what is required by law. The collective agreement has helped improve the working conditions for many workers:

  • contributed to employers agreeing to create safer and better workplaces
  • raising worker’s wages and benefits, including higher wages for women and younger workers (under 25 years of age)
  • better pensions for retired union members

For all of these reasons, it makes a lot of sense why many working people would believe that joining a union is the smart move.

Unions and disability

When you are injured or have a disability and are looking to receive financial support, the natural first step would be to take advantage of any employee benefits you might have: paid or unpaid sick leave, covered medical expenses such as mental health support, physical therapy, etc. These would normally run through a company’s human resources department. 

Once your sick leave is used up and you’ve been unable to recover from your disability, you’ll look at using your short-term disability benefits, and then your long-term disability benefits, both of which in most cases are negotiated for and potentially managed by your union, if you are a member of a union. The conditions of those short-term/long-term benefits would be detailed in the collective agreement signed when you joined the union. It might detail rights and benefits that members of the union are entitled to, at work and elsewhere:

  • right to “accommodation” at the workplace (reasonable adjustments made to ensure that people with disability can continue to do their job) accommodation is enshrined in law.
  • allowance for short and long-term disability benefits.
  • allowance for medical needs, such as dental and vision care.
  • allowance for medication and prescription drugs.

In theory, rather than having to apply for provincial and federal support for your disability once your company’s sick leave runs out, being a member of a union means that you have the support promised in your collective agreement behind you. In reality, some people might not get the level of support that they expect and believe they have paid for from their union.

Why is your union not fighting for you?

The best-case scenario – if there is such a thing as a best-case scenario when talking about disability – is for an insurer to grant your claim for insurance benefits, telling your company that you are, in fact, unable to perform your work duties and should be compensated financially. However, insurance companies will do everything they can to find a reason not to grant a disability claim, simply because more granted claims mean less financial gains for these companies. Ideally, this is when your union will step in and fight on your behalf, up to and including taking the insurance carrier to court, but there are a number of reasons why this – too often – does not happen:

Your union might not enough have enough experience/resources

Unions were created to stand up for employees who don’t have the legal expertise or the leverage to go up against their employers, or the insurance companies. but sometimes, the unions that promise to speak on their behalf are often too small and have too little leverage themselves to make a significant difference when discussing your case with your insurance carrier. As a body that specializes in dealing with the rights of working employees (number of paid holidays, access to ergonomic equipment, improving accessibility to training available, etc), unions are often not the best equipped legal body to address issues surrounding your medical fitness for work, which often is the most important issue when claiming for disability benefits. 

Not only do unions often not understand the key issues proving disability, they often don’t have the resources to keep up a continued fight for every single union member with a disability. A union’s financial resources mainly come from its union dues, and regular membership fees that unions collect from their members; the fewer the union members, the less money the union has to invest in ensuring that individuals with disabilities are successful in securing their disability benefits. 

Insurance carriers, on the other hand, make it their business to understand, in great detail, the definition of working ability, for no other purpose but to prove that people who are making disability claims are, in fact, able to work, at least according to their collective agreement. Unlike unions, which use more time and money every day they continue to fight for a union member’s benefits, every day an insurance carrier is able to avoid granting a disability claim is another day’s worth of savings for them and the employer. Despite the initial promises of the union and the attractive look of the collective agreement, many people with disabilities can be disappointed with their union’s lack of success in negotiating on their behalf. 

It might not benefit most employees

One of the union’s core principles is to act for the benefit of the majority of employees, much in the same way that Canadian democracy works for the majority of Canadians. Unfortunately for people with disabilities, the issues that they face are not what “the majority” of employees will ever face in their able-bodied lives. This is yet another reason, on top of the limited resources that a union has to work with, why a union may be reluctant to take on a case against an insurance carrier. It might benefit the single individual who is struggling with a disability, but it doesn’t serve the union’s purpose of creating better standards and conditions for the majority of employees that it represents. 

There is no guarantee of success through arbitration

When first considering whether to legally file a claim against an insurance carrier or to go through their union and file a grievance. Every case is considered based on the conditions of the collective agreement. If the conditions of the collective agreement state that you’re unable to file a legal appeal through a lawyer outside of the union, the only option is to go to arbitration through your union, which ultimately results in a recommendation to the insurance company whether or not to grant your disability claim. At best this is a recommendation that the insurance carrier can take or, as is the case in many cases, does not choose to go with, and follows through with denying your claim for disability. 

There is a high standard for proving disability

Every case that they take on is a use of resources, and for this reason, unions will be very choosy about which cases they select to support. One of the biggest reasons for an insurer to deny a disability claim is the lack of medical proof, whether it is not having enough medical documentation or having the wrong kind of documentation. A union will also consider whether or not someone with a disability has enough support to back up their claims. They may decide that, despite your legitimate pain and disability, they do not see a winnable case, and may decide that it’s not worth the time and effort to continue fighting for you and your disability benefits. 

What you can do without your union

Learn about the information available to you: As a member of a union, there’s a lot of documentation and paperwork that’s available to you and all members, stating what your rights and benefits are, and knowing what you can expect as a union member. Although it might seem like a lot to sort through and understand, taking the time to go through that paperwork will ensure that you’re not misunderstanding anything about your rights and benefits as a union member.

  • Collective bargaining agreement (CBA): describes in greater detail what collective bargaining entails and what you should know as a union member. If you don’t have a copy of it, you will be able to get a copy of your CBA from your local.
  • Benefits booklets: this describes benefits that union members are entitled to receive. (e.g. benefits for disability, training, retirement, etc). These documents will outline the financial level of protection that you are covered for as a union member, and also will describe qualifying situations.
  • Disability plans: this document details the kind of coverage that union members are entitled to receive in case of injury or disease.
  • Employee benefits: in addition to going through your union, you may be eligible for disability benefits as an employee of your company. Your employee contract should detail some of the benefits that you are entitled to, including paid days off, sick days, as well as employee benefits for medical coverage, including medication, physical therapy and visits to medical professionals.

Take ownership of your documentation: One of the top reasons for a disability claim being dismissed is the lack of supportive documentation. Get as much evidence of your disability and the events leading up to the disability as possible, anything that can help prove your disability and your account of how it came about:

  • Verified medical reports: from your doctor, physical therapist, and any other medical professionals who can attest to your inability to work.
  • Written communication: with your company, your union and your insurance carrier (emails, letters, texts, etc).
  • Original documentation: outlining the terms of your collective agreement, particularly regarding disability benefits.

Get organized and stay active: There is a certain amount of time that is necessary for a case to settle, but there’s a lot that you can do to prepare to file your claim while waiting. 

  • Learn who to speak to about your legal options.
  • Figure out when you need to officially file your disability claim to have the greatest opportunity for success.
  • Create your own milestones for responses from the union, the insurance carrier, and your company. If they are late with their responses, stay on them with constant contact until you have a response, so that you’re able to stay on schedule with your disability claims. 

Even with your union, you’re not on your own

It’s not a good feeling to be alone, particularly if you’re experiencing physical pain and are unsure of where to go next. It might be unclear where your union stands – whether they are going to support your case or not – but at Lalande Disability Lawyers, we’re always happy to look at your case. At the very least, we can look at your collective agreement and let you know what your options are, and give you an idea of what direction to go in.

Even if your union isn’t fighting for you, we will be. Call Lalande Disability Lawyers today @ 1-844-LALANDE or local in the Hamilton/Burlington/Niagara areas @ 905-333-8888 to schedule an online zoom consultation today. We can help get your disability benefits back on track, together.

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