Tagged: long term illness and injury
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Forum: Private
Hi
I have a question about the legal duration of a leave of absence in Alberta.
We have an employee who worked with us for 5 months, and 10 weeks ago, she went on leave of absence for mental health reasons (due to a pre-existing condition). According to Alberta Labor Standards, “an eligible employee can take up to 16 weeks of long-term illness and injury leave each calendar year”. The situation is: She recently submitted a doctor’s note specifying that she won’t be able to return to work for the next 18 months. This term will exceed the 16 weeks (in 2025) stipulated by Alberta legislation.
We are a non-profit organization that supports people with disabilities; It is difficult for us to maintain our position during that extended period since we have to provide a critical service to our people (we have a contract with the government). Given that the duration of this employee’s leave far exceeds 16 weeks, can we tell the employee that we will only keep his position for 16 weeks in 2025? I understand that we cannot terminate the contract of someone in an LOA, but I think that 18 months is excessive to maintain a position since our operation must continue. What is the advisable way to act in full compliance with the ALS but without legal difficulties for our organization?
Thank youAs you know, Alberta’s Labour Standards provide that an employee is entitled to up to 16 weeks of long-term illness or injury leave within a calendar year. After this, you do not have an obligation to maintain the employee’s position unless there are specific accommodations or extensions under the law. As an employer, you are not required to extend the leave beyond 16 weeks.
However, employers have a duty to accommodate employees with disabilities up to the point of undue hardship. 18 months is an exceptionally long duration and likely constitutes undue hardship, especially for a non-profit with a critical role to play in delivering services. You are not legally required to keep the position open for the full 18 months unless the employee’s absence is due to a recognized disability, and the absence results in a situation that can be accommodated reasonably.
After the 16-week period, you could explore other forms of accommodation (such as a reduced work schedule or an alternate position). I would suggest, if you really want to keep this employee and respect their wishes of an 18 month leave, that you present them with a new employment contract that contains provisions on long-term leave and benefits provided beyond Alberta’s minimum standards, or you can agree that the employee will be dismissed if they do not return after 16 weeks as that is the amount of time legally allowed for ALL employees to take regarding injury/illness leave in Alberta, whether that workplace is a non-profit or a major bank. This law applies to all workplaces.Given the complex nature of this case—combining health leave, a long absence, and the specific needs of your non-profit, it would be wise to consult with a lawyer specializing in employment law to ensure that you are handling the situation properly and in full compliance with both the ALS and the duty to accommodate. Remember to keep detailed records of all communications with the employee, including discussions about their leave, the medical notes, and any accommodations offered. This will ensure that your organization is fully prepared in case any disputes arise.
Warm regards and best of luck!
-HRInsider Staff
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