Employers are sometimes faced with an employee that is absent
from the workplace for legitimate reasons for long periods of time.
Absences of these kinds can be frustrating and costly to the
employer. In these circumstances, employers often ask
themselves—at what time, and after how long of an absence,
can we legitimately terminate the employment relationship with the
There are two factors to consider in determining whether an
employee can be legally dismissed for non-culpable absenteeism due
to a mental or physical disability. First, the employment contract
between the parties must be frustrated. Second, the employer's
duty to accommodate the employee must be fulfilled.
Whether the employment contract is frustrated depends on whether
or not the illness or incapacity is of such a nature or is likely
to continue for such a period of time that either the employee will
never be able to perform the duties contemplated by the original
employment contract or that it is unreasonable for the employer to
wait any longer for the employee to recover.
The determination of whether the contract is frustrated is
contextual and will depend on the particular circumstances of each
case. The following factors are relevant to consider:
The terms of the employment contract;
The availability of sick leave and pay to the employee;
How long the employee is likely to remain sick;
The nature of employment and how easy/difficult it is for the
employer to find a temporary replacement;
The nature of the illness;
The period of past employment; and
How long the employer should reasonably be expected to await
the employee's return.
Where an employee has a protected characteristic as defined in
the Human Rights Code, such as a mental or physical
disability, the employer has a duty to reasonably accommodate the
employee to the point of undue hardship.
In addressing this issue, the Court assesses the duty to
accommodate globally starting from the beginning of the absence.
Indicia of positive attempts of an employer to accommodate
Continuation of benefits after the employee ceases
The employer communicates with the employee's doctor to
determine what the employee can and cannot do and puts those
recommendations in action where appropriate;
Open dialogue between the employer and employee to come up with
suggestions for reasonable accommodation; and
The employer holds the position open for the employee's
return for a reasonable period of time.
Acts of employers that the Court has NOT considered appropriate
Not clearly advising the employee that his/her employment is in
jeopardy if the absence continues;
Providing the employee the opportunity to provide further and
more relevant medical information that shows the employee will be
capable of resuming employment in the foreseeable future;
Terminating the employee when s/he is close to qualifying and
receiving long-term disability benefits; and
Inadequate consideration of the medical documentation and
suggestions for accommodation.
In summary, there is no specific length of absence that allows
an employer to terminate an employee. Each circumstance is
different. Further, during the totality of the employee's
absence as well as any periods of return, the employer has a duty
to reasonably accommodate the employee to the point of undue
hardship. Accordingly, it is in the interest of both the employer
and employee to have an open dialogue throughout the period of
absence and only where there is no reasonable possibility of the
employee's return to work in the foreseeable future may
termination be warranted.
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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