Human rights legislation across Canada protects employees from discrimination on the basis of disability and requires employers to accommodate employees with disabilities to the point of undue hardship. Long-term leaves of absence often leave employers wondering how to fulfil their duty to accommodate and at what point are they able to terminate an employee after an extended absence.
How Does an Employer Accommodate an Employee Who Can’t Work Due to Disability?
When an employee requests a leave from work due to illness or injury with supporting documentation, employers generally start by providing the requested leave. Permitting the leave constitutes an accommodation. Generally, the initial leave is for a period of a few weeks or months depending on the medical professional’s recommendation. Following this initial accommodation, human rights adjudicators require an employer to actively engage with the employee to explore other potential accommodations. To do so, an employer should maintain reasonable contact with the employee to monitor their intention and ability to return to work and seek up-to-date information about the nature of the employee’s medical condition, restrictions and limitations, prognosis for recovery, and ability to perform alternative work. This process is ongoing and may last for several years. Employees must have the opportunity to contribute meaningfully to the accommodation process.
If an employer believes they are no longer able to accommodate an extended leave, the employer will need to demonstrate that continuing to accommodate the leave is imposing undue hardship. In Ontario, the Human Rights Code allows adjudicators to consider the cost, outside sources of funding, if any, and health and safety requirements in determining whether an accommodation would constitute undue hardship. These considerations are all relative to the employer in question. For example, a large Company will be expected to absorb a higher cost to accommodate than a small business.
When is the Employment Contract “Frustrated”?
Where there is no reasonable prospect that the employee will return to work, the contract may be considered “frustrated” and the employer may have grounds to end the employment relationship. Employers often ask us for a standard timeframe after which the contract will be considered frustrated and, unfortunately, it’s not that easy to answer. The appropriate timeframe will depend on the specific circumstances of the employee and employer.
For example, in one case, an employee was on sick leave for 8 months due to shoulder pain, which rendered him unable to work as a dishwasher at a restaurant. The employer sought medical documentation of his prognosis and he provided a doctor’s note stating he would be incapable of carrying out his dishwashing duties for the foreseeable future and for a period of not less than 3 years. The British Columbia Human Rights Tribunal found it was reasonable to terminate the employee due to the expected length of their incapacity (Alagaratnam v. Metropolitan Hotel Vancouver, 2013 BCHRT 251).
On the other end of the spectrum, the Ontario Superior Court found an employee who was off on leave for 5 years due to depression was terminated prematurely because their current medical documentation demonstrated they remained in treatment and were seeking help from a new specialist. In that case, the employer failed to request evidence regarding his prognosis and, based on the medical documentation it had at the time, there remained some prospect that the employee could return (Naccarato v. Costco, 2010 ONSC 2651).
While the length of the absence will be considered, the more important consideration is the employee’s prognosis and prospect of returning. A reasonable prospect of returning to work depends on:
- the expected duration of the employee’s incapacity,
- the duration of employment, and
- the nature of the work to be performed.
Employers should always rely on current medical documentation to assess the expected duration of the employee’s incapacity. If it is clear that the employee’s condition is permanent and will not improve to enable a return to work with accommodation, a frustration of contract is clear cut. For example, if a pilot were to permanently lose their eyesight, there would be no reasonable prospect of them returning to work. More often, the employee cannot return to work at the moment and their prognosis is unclear. Where an employee is in treatment and there is some indication their condition may improve in the foreseeable future to enable a return to work, without or without accommodation, the employer should work with the employee to monitor their ability to return to their position of record based on any improvements to their condition or alternative vacant positions they are qualified for.
If this sounds challenging, that’s because it is! Accommodation is an individualized process and considerations for approving leaves, returning employees to work, or terminating employees are often not straightforward. The onus on employers is high in order to ensure all reasonable accommodations are considered for an employee before any action is taken to terminate their employment. That being said, a well-managed accommodation process can boost employee morale, support retention, and reduce liabilities on termination.
If you have questions about managing employees on long-term leaves, please get in touch!