Increasing numbers of employees are struggling with mental
illness and addictions in today's workplaces. The symptoms
related to these types of illnesses, including a decline in
capacity to handle deadlines; stress; despondence; erratic
behavior; inability to concentrate and focus; and fatigue. These
symptoms are often perceived and treated by employers as a
performance issue, with disciplinary results that, in turn, may
worsen the employee's condition.
Despite the negative repercussions that can arise when an
employee who is unwell remains on the job, employees may be
reluctant to take medical leave because they fear retaliation in
the form of denial of promotions or termination when they return to
work. Another concern is a potential loss of pay.
With regard to salary protection, many employers provide sick
leave benefits and/or disability benefits through group insurance.
Employees who are unable to work due to illness, but who do not
have paid sick leave or disability coverage may be eligible to
receive 15 weeks of Employment Insurance sick benefits.
From a legal perspective, an employee's rights are not
prejudiced by taking a medical leave. As long as the employer is
kept reasonably informed about the employee's medical fitness
to work, an absence from work, or deficiencies in performance
caused by a for medical condition will, in most cases, not
constitute "just cause" for dismissal.
Employees with disabilities also have important human rights
protections. A mental health condition (e.g., depression, bipolar
disorder, and anxiety disorder), a diagnosed alcohol or drug
addiction, or a combination of these illnesses is considered to be
a "disability" under human rights law.
The Ontario Human Rights Code prohibits employers from
treating disabled employees adversely because of their disability.
Any disciplinary measure imposed on an employee who has taken
medically supported sick leave will leave the employer vulnerable
to the accusation that the measure taken (e.g. a poor performance
review, demotion, or dismissal) was discriminatory.
The Code also requires employers to reasonably accommodate the
special needs of "disabled" employees, short of
"undue hardship". Legal decisions have set a high
threshold for establishing undue hardship. Employers who refuse to
accommodate disabled employees because of relatively modest
inconvenience or additional cost will not be well placed to defend
against a human rights application.
Employers must make informed decisions about whether, and to
what extent, accommodation is required based on relevant medical
information. Employees requesting accommodation have a
corresponding obligation to provide relevant medical information,
and to cooperate with efforts to identify appropriate accommodation
Remedies available under the Human Rights Code to
employees who suffer adverse consequences in their employment
during or following a medical leave include reinstatement,
compensation for lost wages and other expenses, and general
Employers abiding by their obligations to disabled employees
will accommodate legitimate medical leave requests. Employers
failing to satisfy those obligations risk liability and financial
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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