Questions surrounding disabilities and the duty to accommodate are often misunderstood and nowhere is this more evident than the widespread perception that employees on some form of leave of absence cannot be terminated.
However, this perception is not entirely accurate. In fact, it’s not uncommon for disagreements between an employee and their employer to mount over time, creating tension and stress in the workplace.
Take the following fictional example:
Dale has worked for ABC Ltd. for 4 years. 3 months ago, John was assigned to manage Dale’s department. From the outset, Dale and John disagreed on almost everything: from delegation of assignments, to how tasks are to be performed, to how much coffee goes in the coffee maker.
As time goes by, Dale sees his relationship with his employer eroding. He’s not sleeping well and he worries constantly about work. He is concerned that he will lose his job. Feeling as though he has no options, Dale is put off work for 4 weeks with a diagnosis of situational anxiety.
His employer is also looking closely at the situation. The company sees the tension between Dale and his supervisor. Shortly before Dale takes leave, the company made the decision that it would terminate his employment. The decision was not communicated prior to Dale announcing his medical leave.
Employee stress and anxiety is a common reaction to an unhappy workplace. Employees in these’ circumstances often take leave not only to deal with their anxiety, but also as a defence mechanism against a perceived threat. For their part, companies are often unsure how to respond when an under-performing employee takes medical leave and will often suspend plans for termination until some time after the employee has returned to work.
However, employees on leaves of absence are not protected from termination on that basis alone. While it is good practice for an employer to be sensitive to an employee’s personal circumstances, there is nothing inherently wrong with an employer terminating an employee who is on a medical leave (or a parental leave for that matter) provided that the reason for the termination is unrelated to the disability. Our legal system has always recognized the right of employers to terminate the employment contract, and a medical condition or an approved leave of absence does not in itself alter this right.
It is easy to see why there is confusion on this topic. Leaves of absence are employment rights recognized under the Employment Standards Act and in human rights law under an employer’s duty to accommodate. However, provided that the employee is not being terminated because of their disability, terminating an employee on leave is not in itself discrimination. Taking the example of Dale, he is not being terminated because he’s on a medical leave of absence; he’s being terminated because he does not get along with his manager and the company wants to go in a different direction.
Part of the problem for employers is that the optics of terminating an employee on leave is almost always terrible. It’s easy for an employee to point to the termination and allege discrimination or a breach of statute. This leaves the employer in the position of having to justify the termination and having to demonstrate that the decision in no way relates to the leave from work or the underlying disability.
Recognizing these risks, record keeping is paramount. An employer must be able to demonstrate that other reasons for the termination existed. For instance, evidence of problem behaviour, meeting minutes addressing the termination, or proof of corporate restructuring can all support the timing of the decision to terminate. For an employer, being prepared may not prevent a claim from being brought forward, but it will certainly assist in defending the action.