Canada: Can A Company Fire An Employee Who Is On Sick Leave?

Last Updated: October 7 2014
Article by Howard Levitt

Mere weeks from the municipal election, the sudden news of Rob Ford's cancer diagnosis brings to mind how devastating illness can be to one's career.

One never expects to leave work for an indefinite period, suddenly off-loading work fraught with looming deadlines to colleagues; leaving your employer and coworkers in the lurch.  A sick leave, taken at an inopportune time, can be catastrophic, steering your employer's business off the rails. When this happens, to what extent must employers suffer this inconvenience and keep an employee's job available until he or she is well enough to return?

The short answer, employers must accommodate sick employees to the point of "undue hardship", which is generally accepted to mean that employers have to show that their business would suffer overwhelming harm or loss as a result of not terminating the sick employee. What many employers don't appreciate is that this is an onerous burden as the legal threshold to prove undue hardship is extremely high. All prudent employers need good counsel on their side to navigate their obligations when it comes to such accommodation.

For example, Jocelyn Hebert was employed to clean and maintain a police station. Three years after her employment commenced, Hebert notified her employer,  a numbered company, that her doctor had recommended that she take a stress leave for about three months. The employer had to hire a new person to clean and maintain the station. It also suspected that Hebert would likely be away longer than the estimated three months. The employer terminated Hebert for "administrative reasons" during her sick leave. Hebert launched a human rights complaint citing that she was only terminated as a result of her sickness.

Any employer might sympathize with the plight of Hebert's employer. Practically speaking, it was forced to replace Hebert on extremely short notice and it would be inconvenient to hire and train a new employee only to be terminated a relatively short time later when Hebert returned.

Nevertheless, the Tribunal found that discrimination occurred. The Tribunal noted that all that needs to be established is to find that the "disability was a factor in the respondent's decision to terminate her employment. She does not need to show that it was the sole or the dominant reason."

In Hebert's case, neither party disputed the fact of her disability. While Hebert was successful, many employers don't realize that they still have the ability to terminate an employee while on sick leave.

I frequently handle files where clients are fearful of firing an insubordinate, low performing employee on a medical leave. It is not uncommon that poor performing employees seek medical or stress leaves hoping that this will make them "bullet proof" from the risk of dismissal. Leaving the legitimacy of these medical claims aside, if an employee is unsuitable and must be terminated, terminations during a medical leave are permissable as long as the reason for termination has nothing to do with the fact that they are sick and required accommodation.

I have my clients document ongoing concerns with disobedient employees throughout the course of their employment and, if termination was already in the offing, use the time that they are on medical leave to collect more evidence, interview colleagues and supervisors, review their performance history, all to build a strong body of evidence supporting the termination. However, there had better be evidence that termination was being considered before the illness arose or the fact of that "sudden" investigation could well be a human rights violation itself. When there is no such cogent evidence of an imminent dismissal, I have my clients, upon the employee's return, reiterate the employee's pre-existing poor evaluation and remind them that they are on a route to dismissal without sufficient improvement. Of course, if you happen to learn of some new ground of cause, such as dishonesty, during the disability leave, you can terminate the employee immediately.

Employees may be doing themselves a disservice by taking a sick leave at a time where they have exhibited a poor attitude, desultory performance and unwillingness to improve and were already on a performance improvement plan. Their employers may well have a legitimate reason to terminate them whilst on their leave. Indeed, taking the leave may exacerbate the prospects of dismissal as other employees, now feeling protected, come out of the woodwork to  volunteer new information.

Additional tips for employers to consider when an employee is approved for medical leave:

" Ask for medical documentation immediately Employees will likely provide employers with a hand written doctor's note scribbled on a prescription pad allegedly approving their leave from work indefinitely. Generally, these GP's are simply relying upon what the employee has told them and have no independent basis to vouchsafe the disability's legitimacy. Seek more detailed medical documentation immediately, ask for letters from doctors and specialists, identifying the actual limitations and functionalities of the employee and consider having that employee attend an independent medical assessment to substantiate the alleged illness.

" Accommodate the disabililty Employers are legally required to accommodate illnesses and disabilities and employees, to accept even imperfect accommodations. Once ascertaining the employee's actual medical functionalities and limitations, you are required to provide them a different job which they are capable of performing or modify their current one. If an employee refuses to accept it, that could constitute their abandonment of employment. Obviously, employees seeking sick leave as respite from the prospect of imminent termination do not want to continue working in a less desirable job. You are not required to maintain their regular salary while they are on modified work but only the market value of that job.

" Review their personnel file If this is an employee that is already at risk of termination, review the file to determine if the employee has been warned or suspended in the past. Update the file with notes and emails that you collect during their absence that establishes further evidence of poor performance, insubordination or breach of company policies.

" Know your obligations An employee does not have any inherent right to be paid while off sick. Review your benefits plan (if any) to determine if the employee is eligible for extended benefits or pay while away. If your employee applies for short term or long term disability benefits, employ your insurer to assess medical documentation and conduct independent medical exams to ensure their illness is substantiated before benefits are provided. If you don't offer benefits, provide a record of employment to the employee to allow them to apply for sick benefits through Service Canada.

Ultimately, employers should not shy away from taking swift action against poor performing employees simply because of a medical leave. Employers have the right to terminate and should do so where they have collected the requisite evidence to support the termination; provided the medical leave is not a factor that prompted the termination. Too few presently do.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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