Terminations and Sick Leave

Terminations and Sick Leave: What you need to know

Can you terminate an employee who is on sick leave?

Yes.

Wait! Don’t click away from this post! There’s a little more to it than that!

As an employer, it is your prerogative to terminate any employee at any time and for almost any reason (more on that shortly) provided that you give them appropriate notice or pay in lieu thereof.

Leaves of absence do not protect employees from termination

You may terminate an employee who is on leave or planning to take leave just as you would any other employee, so long as your reason for terminating their employment is not because of their (intended) leave.

Poor performance or unavoidable downsizing or restructuring are perfectly legitimate and acceptable grounds to terminate any employee regardless of their health status.

Protections for employees

For all that employers may plan and anticipate, some things are out of their control. Sick leaves do not necessarily come at convenient times. The need for treatment does not schedule itself around workplace deadlines.

Employers must accommodate an employee’s need to take a sick leave. It can be difficult and frustrating, but you cannot simply fire an employee on sick leave for the inconvenience it may cause your business

As an employer, you must accommodate a sick employee to the point of ‘undue hardship’. This could mean modifying their hours or accommodating their need to take a sick leave.

Nonetheless, you may terminate any employee at any time and for any reason with two major prohibitions. Employment Standards and Human Rights Legislation prohibit the termination or punishment of an employee based on discrimination against a protected group (such as people with a disability or a pregnant person). Furthermore, an employee can not be terminated for exercising his or her legal rights (such as their right to take a sick leave of absence).

If a tribunal finds that your employee’s leave played even so much as a hint of a role in your decision to terminate them, you will be ordered to compensate the dismissed employee for damages suffered.

The case of Whitmore v. Dr. J.T. Kelsall Inc. provides a useful example of when and how you can terminate an employee who is on sick leave.

Whitmore v. Dr. J. T. Kelsall Inc. (2017)

In this case, a little over a year into her employment, Ms. Whitmore required corrective surgery for a medical problem and subsequently took a medical leave of absence. She was assured that her position as a medical office assistant was secure.

After several unsuccessful attempts to return to work, Ms. Whitmore was dismissed from her position. Whitmore filed a Human Rights Complaint that she had been discriminated against on the basis of medical leave due to a disability.

Her employer insisted that the termination was due to poor performance and presented evidence that demonstrated Ms. Whitmore’s competence had been raised as a concern at her performance review. What’s more, in her absence, her employer learned that Ms. Whitmore had improperly booked patients, failed to respond to consultation requests and had not faxed over 350 consultation reports regarding patient diagnoses, treatments and medication requests.

The tribunal decided that the evidence far outweighed the suspicious timing of her dismissal and Ms. Whitmore’s claim was dismissed.

Takeaway for employers

The optics of firing an employee on sick leave are not good. Questions surrounding the reason for the employee’s dismissal are almost bound to arise. As an employer, this puts you in the position of having to demonstrate the legitimacy of the termination.

To prove that your decision to terminate an employee has nothing to do with their sick leave, you will want to have ample, timely documentation to support your dismissal decision. You should be able to easily show that termination was on the table before your employee went on leave.

To protect yourself against claims of discrimination, employers should make sure they document poor workplace performance or behaviour as it occurs so that they have evidence to legitimize the termination of an employee who is on leave.

If it is too hard to clearly and incontrovertibly prove that your decision to terminate an employee was not related to their leave, you can always simply terminate them without cause and offer appropriate notice or pay in lieu thereof.

Before terminating an employee who is on sick leave, talk to the employment law experts at KCY at LAW. Our team can help you assess the situation, gather the necessary evidence and advise you of the best legal course of action. Call us at 905-639-0999 to book your consultation today!