Employers must be mindful of obligations around medical leave
By AdvocateDaily.com Staff
Employers need to be aware that human rights legislation requires them not to discriminate against or terminate an employee on medical leave, and to accommodate that worker — to the point of undue hardship — when they are ready to return to work, Toronto employment lawyer Natalie MacDonald tells The Globe and Mail.
MacDonald, co-founder and co-managing partner of Rudner MacDonald LLP, and author of Extraordinary Damages in Canadian Employment Law, weighs in on the issue in an advice column in the newspaper’s Report on Business section, where a reader said their employer told them not to come back to work after being off on medical leave for months with a torn rotator cuff.
“It sounds as though you have been improperly treated," MacDonald writes. "Human-rights legislation requires employers to accommodate employees, if required, and not to discriminate against or terminate an employee, while on medical leave, based on sickness or disability.”
When the employee is cleared to return to work, she adds, the employer is obligated to accommodate the worker, if necessary, to the point of undue hardship. Accommodation, says MacDonald, is fact-specific, but it could mean modified duties, a graduated-return-to-work plan or a reconfigured workstation.
“An employer should return the employee to the same position he or she held before the leave, unless there is a legitimate business reason for not doing so that the employer can prove. An employer is also well advised not to reduce an employee’s rate of pay or hours,” she adds.
MacDonald explains that employees who believe they have been terminated due to an injury can make a complaint to the Ontario Human Rights Tribunal, where they can ask for lost wages, if any, and general damages for the injury to their dignity, feelings and self-respect. Ontario-based employees can also request reinstatement to their position.
“The alternate path is to start a lawsuit in the civil courts for damages for the wrongful dismissal itself, and claim, in addition, damages for breach of the Human Rights Code,” says MacDonald.
In another advice column, MacDonald discussed a reader’s question of whether anything can be done to assist his brother-in-law after he lost his job of 25 years and his home when his employer, who was also his landlord, sold the business. The new owners gave the man a one-month notice to end the tenancy for cause, and a one-month notice to end his employment.
As MacDonald writes, in Ontario, the Employment Standards Act, 2000 requires the employer to provide notice of termination or pay in lieu — eight weeks in this case, given his length of service — and if applicable, severance pay, which, in this instance, would amount to 25 weeks.
“In addition, in the absence of a valid termination clause in an employment contract, he must be provided with reasonable notice of the termination of his employment (‘severance package’), which would include payment of his salary, benefits and any other entitlements he had prior to the termination, which may include his home and the tenancy arrangement,” says MacDonald.
Under the Residential Tenancies Act, 2006, she says, a landlord can only end a tenancy on notice for specified reasons, termination of employment being one.
“A notice ‘for cause’ could be not paying the rent in full, causing damage or illegal activity. The length of notice required by a landlord to terminate a tenancy depends on the type of tenancy (weekly/monthly/yearly), and if for cause, the type of cause upon which the landlord relies. In any case, he and his wife have remedies available to them.”
Another concerned reader asks whether they should speak up in a situation where they feel a few senior executives in their company are involved in something unethical, or possibly even illegal.
Toronto employment lawyer Stuart Rudner says, if you speak up, you need to be absolutely sure something questionable is going on.
Rudner, co-founding partner of Rudner MacDonald LLP and author of You’re Fired! Just Cause for Dismissal in Canada, says: "You've got to provide enough information for an investigation to be meaningful."
The safest way to blow the whistle, he says, is to do so anonymously, with as much supporting material as possible — although this is becoming more difficult to do covertly in the digital world.