Longer salary continuance for top employees

Distinction must be based on performance, not disability
By Brian Johnston
|Canadian Employment Law Today|Last Updated: 09/05/2012

Question: Our company rewards better workers with higher salaries. Is there any liability risk if we reward these employees with longer salary continuance payments if they are laid off with a disability?

Answer: This is an interesting question without any reported decisions that can guide us in our answer. The potential liability arises as if there is an allegation of discrimination based on disability. However, on one level, the employer can say that it is providing disability coverage to all employees and that, therefore, it is not discriminating against employees based upon their disability. The employer can then say that any differentiation among employees with respect to the duration of the disability benefit period does not arise due to any distinction based on disability, but rather is based upon one employee being a “better worker” than another. We know that the amount of disability benefits depends on the employee’s compensation. Therefore, workers with higher salaries receive more money from disability than employees with lesser salaries. That has never been challenged successfully.

Therefore, likely there is no liability risk if a company rewards better employees with long salary continuance payments; whether that approach makes sense from a human resources perspective is, of course, up to the company to decide.