Casual Legal: Termination & medical leaves
By Lauren Chalaturnyk
Reynolds Mirth Richards Farmer LLPs
Alberta Municipalities Casual Legal Service Provider
Every now and then, employers must consider terminating an employee who is either on medical leave or has just returned from a lengthy medical leave. It is a complicated and delicate situation that carries with it obligations under both the Employment Standards Code and the Alberta Human Rights Act.
Employees are entitled to 16 weeks of job-protected illness leave per calendar year under the Employment Standards Code. Employers are legally obligated to maintain an employee’s position while they are away from work.
To qualify for job-protected leave, an employee must have worked for their employer for at least 90 days and must provide a doctor’s note that indicates the estimated length of the medical leave. If the anticipated length of the leave is extended, the employee is obligated to communicate the change, with appropriate medical support, to the employer. Failure to keep the employer apprised of the status of their condition and their anticipated return to work could result in the employer having reason to terminate the employee’s employment.
Employers need to be mindful of this 16-week period and, except in rare circumstances, will need to ensure the employee’s position remains available for at least 16 weeks following the start of a medical leave. In addition to an employer’s obligations under the Employment Standards Code, they must also remember that are prohibited from discriminating against an employee on the basis of a physical or mental disability. Because the disability protected ground is engaged while an employee is on medical leave, an employer must be especially cautious when considering termination. If the decision to terminate an employee is connected, in any way, to their disability, then the termination will most likely be discriminatory and contrary to the Alberta Human Rights Act. For this reason, employers must decide whether terminating the employee while they are on medical leave is worth the risk of a human rights complaint.
Employers should also remember they have a duty to accommodate employees up to the point of undue hardship. This includes assisting employees with their return-to-work plans. Employers should bear in mind that accommodations must reflect the specific employee’s needs. It cannot be a “one size fits all” approach. If there are ongoing performance concerns, employers can consider terminating an employee shortly following their return to work. However, employers must ensure the reasons for termination do not relate, in any way, to the employee’s medical condition or disability. If an employer is considering this option, they should consult a lawyer to ensure they are doing everything they can to mitigate the risks associated with terminations and medical leaves.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
