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Dealing with a disability leave

What can an employer do when an employee has been off work for a significant period of time due to a disability (illness or injury)? How long must the employee remain employed with the employer under human rights law? These are questions often asked by employers and human resources professionals.

Employers may become frustrated when they find themselves in a situation where an employee has been absent for a significant period of time, or is frequently absent form work. Employers need their employees to be working in order to meet business objectives. However, it is clear that employers must accommodate absent employees who suffer from a disability to the point of undue hardship. What to do really depends on the specific circumstances of the case.

This means the employer must acknowledge that there may be different ways to perform the absent employee’s job while still accomplishing the employer’s legitimate work-related purpose. The employer must be as flexible as possible regarding persons with disabilities, and find a way to tailor the employee’s work to meet her or his specific needs.

Accommodating a disability to the point of undue hardship can mean different things in different situations. It might mean the employer must adjust work schedules, modify or purchase new equipment to allow the employee to do the job, or restructure the job duties. Sometimes it is necessary to adjust policies and procedures or modify physical surroundings. Simply put, reasonable accommodation depends on the circumstances, and mere inconvenience is not considered an undue hardship.

When an employee is unable to return to work for a prolonged period, or is absent very frequently because of a disability, the absences may be justified. For non-culpable absences, the employer still has the duty to accommodate to the point of undue hardship, to allow a leave of absence with job protection, and to arrange the employee’s work environment or duties to enable the employee to work. This situation is different from culpable absences, where an employee is frequently away because of minor illnesses or attitude problems where a disciplinary approach would be more appropriate.

However, an employer is not obliged to indefinitely employ someone who is not capable of regular job performance. If the characteristics of an illness are such accommodations would excessively hamper the proper operation of the business, or if an ill employee remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her, the employer will have satisfied the test of accommodation to the point of undue hardship.

The decision to dismiss an employee because she or he is no longer able to fulfill the basic obligations associated with the job must be based on an assessment of the entire situation. All past events and attempts to accommodate must be taken into consideration. That is why it is important to document and track the entire accommodation process.

Yet it is important to know that recent case law has made it clear that employers are entitled to manage absenteeism in the workplace and monitor employees who are chronically absent from work. Moreover, employers can create a disability program involving regular contact with an employee’s physician in order to support treatment as a legitimate form of accommodation.

On a related note, “frustration of contract” occurs when an employee becomes incapable of performing her or his duties as set out by the parties at the time they made the contract. If frustration occurs, the employer would no longer be required to accommodate the employee, and a dismissal would be permitted.

When determining whether a chronically ill or injured employee satisfies the frustration of contract clause, courts ask whether the employee’s incapacity at the time of a purported dismissal is of such a nature that further performance of the employee’s obligations in the future would be either impossible or radically different from the contract terms accepted by the employer. The existence of sick leave and long-term disability plans provided by the employer can have a significant impact in the analysis. These may be a factor if: the employee has been away from work for a long period of time; accommodation efforts have failed; and the medical evidence shows that there is no reasonable prospect of a return to work in the foreseeable future.

When dealing with employees who are frequently absent or absent for significant periods of time, it is recommended not to act hastily, and to consult with a lawyer before terminating the employee. Whatever you do, ensure you are always acting in good faith and aiming to accommodate the employee.

For reference, see the following cases:

Keays v. Honda Canada

Syndicat des employées et employés de techniques professionnelles et de bureau d’Hydro-Québec, local 2000 (SCFP-FTQ) c. Hydro-Québec

I’m wondering: has your company ever been at a loss because an employee was absent for a significant period of time? How did the employer handle the situation?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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