Being sick can cause a lot of turmoil in one’s personal and professional life. For example, a person can often go on sick leave for an indeterminate period of time depending on their illness which may or may not result in big unexpected changes for their employer. So what is the employer or employee to do? Should the employer keep the job available for the employee to attend to once they return from sick leave? Can they fire the employee and hire another person to do the job?
The short answer is: “it depends.” The employer should be very careful when they decide to terminate a sick employee who has been away. Sometimes an employer would try to argue that the employment contract has been “frustrated” or “abandoned” and that the employment relationship should be treated as at an end prior to the employee’s return. However, in addition to complex common law principles the employer’s obligations in such circumstances always have to be looked at in light of Ontario’s human rights laws that essentially state that the employer has a duty to accommodate an employee who is sick or ill until the point of “undue hardship”. This means that the employer may have to take reasonable steps to accommodate an employee upon the employee’s anticipated return to work by, for example, modifying his or her duties, formulating a different schedule or waiting for the employee to recover and reinstate them to their position. Though not impossible, it could be hard for the employer to treat the employment relationship as at an end without having to compensate the employee, sometimes substantially.
When analyzing an employee’s return to work rights it is important to note that the length of the allowable leave of absence may vary depending on the circumstances. In one instance it may be appropriate to permit a short absence and in another it may be appropriate to allow the employee’s leave of absence to last for months or even years.
With all of the above being said, employees need to understand that saying “I am sick,” may not be enough to justify not coming back to work. Often the employer requires reasonable explanation as to what accommodation the employee requires and what the expected return-to-work date is. This explanation will usually come from the employee’s physician in writing. So the employee should be prepared to frankly apprise the employer of their needs including providing the employer with adequate notes from their physicians if their workplace interests are to be properly considered.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.