Since you’re federally regulated in Canada, the Canada Labour Code (CLC) governs your employment practices, including recall rights and medical leaves. Here’s a breakdown of your options and obligations:

1. Medical Inability to Return to Work
If the recalled employee has provided valid medical documentation showing they are temporarily unable to return to work, you cannot terminate their employment solely on that basis. Under the CLC:

Employees have protection from dismissal due to illness or injury, particularly if they are on a medically certified leave.

The law requires employers to accommodate medical leaves, unless doing so would cause undue hardship.

This means the employee remains employed but on a medical leave status.

2. Recall Rights During Medical Leave
Recall rights are not automatically forfeited just because the employee is unable to return right now:

If the employee was recalled but is medically unable to report, you should document the refusal as medical leave rather than abandonment or refusal of work.

Their place on the recall list may remain “frozen” until they are medically cleared to return.

This approach avoids discrimination under the Canadian Human Rights Act, which protects against termination due to disability.

3. Can You Move to the Next Person on the Recall List?
Yes. Since the recalled employee is unavailable:

You may move to the next qualified person on the recall list to fill the position in the interim.

The original employee’s recall rights remain intact, assuming their medical condition is temporary and recovery is expected.

4. When Can Termination Be Considered?
Termination may only be lawful if:

The medical condition results in a permanent inability to work, and

You’ve engaged in a thorough accommodation process, and

You can demonstrate undue hardship if accommodation is not feasible.

You must have clear, ongoing documentation and communication with the employee. Terminating recall rights prematurely would likely be seen as discriminatory and could expose you to legal risk.

Recommended Steps
-Acknowledge the medical documentation and maintain the employee’s status as “on leave.”
-Communicate clearly in writing that their recall is deferred due to medical reasons.
-Move to the next person on the recall list for operational needs.
-Continue to monitor the employee’s medical status and request periodic updates.

I hope this helps!
-HRInsider Staff