Imagine having all of your private health insurance across dental, vision, prescription drugs, life and disability coverage suddenly terminated by your employer at the age of 65 while you’re still working for them — and just when you may really need them the most.
Unfortunately, it happens way more than you think.
In a world that for some reason permits pension and benefit plans to treat workers older than 65 and younger than 18 differently than their colleagues, it brings the human rights argument to centre stage — and this once again came into focus recently with the Canadian Union of Public Employees against Ontario hospitals.
A recent decision has all Ontario hospitals continuing LTD coverage past 65
A recent decision by Ontario’s Divisional Court grabbed the headline’s lately with the entire province’s hospital sector being on the hook to provide long-term disability coverage to all unionized employees who work past the age of 65.
This was in relation to a collective bargaining agreement between Markham Stouffville Hospital and the Canadian Union of Public Employees (CUPE) Local 1999.
The language of the collective agreement was called into question
What adds another layer of interesting depth to this case is that the text of Markham Stouffville Hospital’s long-term disability coverage master policy did in fact provide for termination of coverage at age 65.
The arbitration board ultimately came to the conclusion that the parties’ intention was to extend the coverage beyond the age of 65 because the Long-Term Disability provision in the collective agreement referred specifically to a 1992 booklet that summarized the plan but made no reference to the master policy or to coverage ending at age 65.
The problem was that the master policy is supposed to be the central document, and you can’t have separate master agreements for all 54 of the CUPE hospitals. So they conformed the master plan to the 1992 booklet as a template – instead of the other way around and having the booklet conform to the master plan.
This being the case, age discrimination and human rights weren’t called in to question, but still showcases the importance of the correct language being used in collective bargaining.
“A violation of the Charter of Rights and Freedoms.”
Prior to December 12th, 2006, the Ontario Human Rights Code did not prohibit age discrimination in employment against persons aged 65 or older.
That meant leading up to that date, employees could still be terminated when they turned 65. When Ontario finally abolished mandatory retirement, the Human Rights Code and Employment Standards Act still allowed employers to cut workers off from their benefits when they turned 65.
The province’s Human Rights Tribunal finally determined the provision in the Human Rights Code that allowed employers to do so was unconstitutional, and in doing so, meant that employers could no longer rely on this loophole in the Human Rights Code and Employment Standards Act to justify cutting off a workers’ benefits.
Excluding workers over 65 from their benefits plans will now make them vulnerable to lawsuits if they do.
Steve Talos: A case that became a victory for older workers
In the case of Steve Talos, a high school teacher at the Grand Erie District School Board, which really became a defining case to which other instances of age discrimination are benchmarked against, took six years to see the final decision come through. To summarize, Mr. Talos was seeking the ability to keep teaching past age 65 because his wife required expensive medication following a diagnosis with ovarian cancer.
While Ontario covers most drug costs for residents aged 65 and over, it costs employers the same to include an employee who is between the ages of 65 and 79 on the benefits plan as it does to include workers in their 40’s. So why was this always an issue? And why did this take so much battling to not only prove that this was unconstitutional and unethical but why employers should do right by their workforce when they need the help the most?
It really just comes down to protecting their employees’ health rather than protecting their bottom line.