‘Safety Valve’ Needed to Protect Employees With Self-Insured Plans, Many Say

Tuesday, May 25, 2010
CBC news

More than a million Canadians are counting on disability insurance plans that don’t guarantee benefits if their employer goes bankrupt.

Advocates say it’s time for regulations to protect them.

“An insurance that doesn’t give any guarantee is not an insurance, so don’t fool people,” said Josée Marin, who only learned her own insurance fell into
that category after her employer, Nortel Networks, filed for bankruptcy protection.

Now she is warning other Canadians they may risk they same fate.

“People have to know — they have to double-check if they have real insurance.”

Nortel has a court-approved deal with its employees and other creditors to stop paying disability benefits at the end of the year. The former network
technology giant filed for bankruptcy protection in January 2009 and has
since sold its major units.

The company’s creditors, including disabled former employees, must fight to divide among themselves whatever remains.

Many disabled ex-employees said they were informed only recently that they would lose their benefits as a result of Nortel’s anticipated bankruptcy.
Marin, who has Crohn’s disease and other ailments that leave her too sick to work, said the lives of Nortel’s 400 disabled ex-employees are at risk because of their situation.

Nortel’s plan was a self-insurance benefit plan relying on the company’s own in-house fund, rather than an insurance fund.

According to the Canadian Life and Health Insurance Association, similar “uninsured” plans provided 1.1 million people with disability income
protection in 2008 — about one in 10 Canadian employees. Currently, such
plans supply wage replacement benefits for 23,000 people with disabilities.

Corporate Savings

Hari Nesathurai, a Toronto-based tax lawyer who has set up more than 50 such funds in the past 14 years, said they are popular with large companies
because of the cost and tax savings, compared with insured funds.

Disabled ex-employees want the government to make changes to legislation to protect them. They have held rallies on Parliament Hill, such as this one
last October, to draw attention to their plight. (CBC)”Most corporations who
are in business would rarely miss the opportunity to save costs, especially on something as significant as group benefits,” said Nesathurai, senior tax
counsel at Navarrete Perinot P.C.

He estimates that most Fortune 500 companies would have such a fund.

Diane Urquhart, an independent financial analyst who advocates for Nortel’s disabled employees, said major companies that self-insure their disability
funds include GM, Chrysler and CIBC.

Nesathurai said most of the time, such funds work if they’re funded properly and the employer is solvent, as they typically require the employer to make
up any shortfall.

“However, if the employer is insolvent, as in Nortel’s case … then there’s no one to go to get that money,” he said. “Unfortunately, when things go
wrong, they go very wrong, as in Nortel’s case.”

Employees Unaware

Part of the problem is that it’s often unclear to employees that their benefit plan is self-funded.

In the case of Nortel employees, documentation concerning long-term benefits came from Sun Life Financial, leading many to assume their benefits were
insured. In fact, Sun Life was only administering the plan, not insuring it.

Jackie Bodie, who has Parkinson’s disease, said she fears for her future. ‘At this point, I’m just kind of hoping that I don’t live long enough to see
it,’ she said. (CBC)Jackie Bodie, 40, a former hardware design technologist
at Nortel’s Calgary campus, said she was told by Nortel she would be covered
by her disability insurance until age 65.

“I found out last August that, in fact, I’m not covered anymore,” recalled Bodie, who was diagnosed with Parkinson’s disease in 2003 and forced to stop
working two years later.

“The real kicker for me is that they didn’t tell me this until my diagnosis, obviously, so now it’s too late for me to get insurance anywhere else.”

Bodie said her situation is particularly hard because she’s only 40. She choked back tears as she voiced her fears about what the future holds.

“At this point, I’m just kind of hoping that I don’t live long enough to see

Jim Derkson, head of the human rights committee for the Council of Canadians with Disabilities, said the situation is unfair for both employees and other
taxpayers, as those who can’t get disability benefits may end up on welfare.

‘Absolutely, there is legislation needed’ “We need to make our policy-makers aware that we expect those kinds of
safeguard systems to be safeguarded,” he added.

Many people — from financial experts to politicians — say new laws are required to prevent situations like this.

Industry Minister Tony Clement would not say whether the government plans to support Liberal Senator Art Eggleton’s bill to amend the Bankruptcy and
Insolvency Act. (Canadian Press)”Absolutely, there is regulation needed,”
said Nesathurai. He believes Canadian law should force employers to meet certain requirements in order to set up a self-insured plan.

“In an ideal world,” he added, “there should be some sort of reinsurance or some sort of safety valve to allow insurance company to step in” under
certain circumstances.

A House of Commons bill and a Senate bill both propose changes to the federal Bankruptcy and Insolvency Act that would bring employees on
long-term disability to the top of the list of creditors to be paid if a company goes bankrupt.

Their payments would then be far more likely to continue until age 65, when they would be eligible for retirement benefits.

The Commons bill, brought forward by Wayne Marston, NDP MP for Hamilton East-Stoney Creek, is far down on the list of legislation being debated in
this session of Parliament.

But the Senate bill proposed by Liberal Art Eggleton has already entered debate. If it passes in the Senate, it will go to the House for approval.

The NDP and the Bloc Québécois have both told Eggleton they will support his bill.

However, Industry Minister Tony Clement would not say whether the government will also offer its support.

“All I can tell you right now,” he said, “is we’re looking at the issue and seeing what the most appropriate response is as a society.”

Reproduced from http://www.cbc.ca/canada/ottawa/story/2010/05/21/ottawa-disability-self-insurance-nortel.html