How long are you required to 'hold' an employee's job when they're on sick leave?

It's a simple question with a somewhat complicated legal answer

How long are you required to 'hold' an employee's job when they're on sick leave?
As more and more employers examine their policies and procedures, particularly with ever changing legislation, the issues of compliance with the law becomes very important.

Nowhere is the possible liability more of an issue than the duty to accommodate employees with disabilities, and in specifically the obligation to ‘hold’ an employees’ job open while they are away due to a disability. 

As Lorenzo Lisi, Partner at Aird & Berlis LLP, told us, it's a simple question with a somewhat complicated legal answer.

“To unravel this let’s start with the law,” he added. “At common law, where an employee can no longer provide the service for which they were contracted to an employer, that employment may be deemed ‘frustrated’, which results in the end of the contract with payment only of the employees’ entitlements under the Ontario Employment Standards Act.

“However, this common law right of an employer to simply end employment to an employee who cannot return to work is significantly curtailed by the Ontario Human Rights Code (the “Code”) which provides that an employer is required to accommodate a disabled employee unless the employees’ needs cannot be accommodated without undue hardship on the employer considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”

But what exactly constitutes a ‘disability’?
“Under the Code, the term ‘disability’ is very broadly defined and includes any degree of physical impairment, a condition of mental impairment or a developmental and/or learning disability,” continued Lisi, “a mental disorder; and an injury or disability for which benefits were claimed or received under the Ontario Workplace Safety and Insurance Act.

“What this means is that where the employee is suffering from a disability the employer is under a legal obligation to accommodate that employee to the point of ‘undue hardship’ with respect to a return to work, which includes accommodation/modification to their job in accordance with known and confirmed medical restrictions.”

However, it’s not all plain sailing from here on out. Lisi explained that demonstrating ‘undue hardship’ is a mammoth task in itself.

“Once an employee states that they cannot return to work or can only return if their job is modified, then it is up to the employer to balance the legal obligation to accommodate with an assessment of the workplace with the intent of determining appropriate modifications to the employees’ job.

“It is only where undue hardship exists, and the prospect of the employee returning to work, even with accommodation, is feint or medically unsustainable over time, will a decision by an employer to take the position that the contract of employment has been frustrated be defensible. These situations are, however, usually relegated to those employees who have been on longer term disability for a period of time.”

So, taking this into consideration, how does an employer determine what the appropriate accommodation might be? 
“The short answer is that it asks the right questions.  While employers have no right to confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment (unless these clearly relate to the accommodation that is being requested), an employer can and should request information which allows it to assess the employees’ restrictions relative to the job, the workplace and the ability of the employee to perform the duties in a safe manner. 

“Employers are wise to have one consistent process addressing requests for accommodation, which includes a frank assessment of the workplace and open communication with the employee and/or a union if the employee is unionized.  Prior to making any decision on accommodation, it is important to ensure that the right medical has been received and also that the doctor and/or employee fully understands the nature of the job and its duties. 

“And finally, making sure that all correspondence and communications, as well as the internal assessment of whether or not accommodation is possible, are fully documented is critical to demonstrate not only legal compliance, but to assist in an appropriate accommodation.”

The conclusion? Well, there’s no one-size-sits-all approach that all employers can swear by.

“The lawyers’ answer is that there is no one ‘answer’” revealed Lisi. “But the requirement to have a process and assess each situation on its merits is critical.

“Employers must know and understand not only their legal obligations, but their rights to require sufficient information to make an informed decision when considering whether an employees’ job will remain when they suffer from a disability.”

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