Legitimate, long-term absences and the employer’s duty to accommodate

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 absent employee?

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:

1. The terms of the employment contract;
2. The availability of sick leave and pay to the employee;
3. How long the employee is likely to remain sick;
4. The nature of employment and how easy/difficult it is for the employer to find a temporary replacement;
5. The nature of the illness;
6. The period of past employment; and
7. 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 include:

1. Continuation of benefits after the employee ceases working;
2. 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;
3. Open dialogue between the employer and employee to come up with suggestions for reasonable accommodation; and
4. 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 accommodation include:

1. Not clearly advising the employee that his/her employment is in jeopardy if the absence continues;
2. 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;
3. 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.