This situation engages the employer’s duty to accommodate under human rights law, which is not determined by the length of disability benefits but by whether the employee can return to work with reasonable accommodation. If the employee is approved for long-term disability (LTD) and remains unable to return after the two-year benefit period, termination may be permissible—but only if there is clear medical evidence that the employee cannot perform the essential duties of their role and there is no reasonable likelihood of a return to work in the foreseeable future. Employers must show they have explored accommodation options and maintained communication before considering termination.

If the LTD claim is not approved, there is no fixed period that an employer must continue to hold the position open. Instead, the employer must provide a reasonable opportunity for the employee to participate in the accommodation process and demonstrate their ability to return safely. This includes requesting updated medical information and engaging in return-to-work planning. However, the employee also has a responsibility to cooperate, including providing necessary documentation to support their absence and any accommodation needs.

In this case, the employee’s extended absence (approaching one year) combined with a pattern of non-cooperation—particularly failure to provide medical documentation—places limits on the employer’s obligations. While employers must be cautious and act in good faith, they are not required to accommodate indefinitely in the absence of information. If the employee continues to be unresponsive after clear requests and reasonable deadlines, the employer may be justified in making decisions based on the information available.

Where an employee is unable to return to work, the employer’s options depend on the available medical evidence and the employee’s level of engagement. These options may include continued accommodation through modified duties or hours, reassignment to a different role if feasible, or maintaining a medical leave where there is a reasonable expectation of return. In situations where medical information is unclear or lacking, an independent medical examination may be appropriate to better understand the employee’s capabilities.

Ultimately, termination may be considered where there is sufficient evidence that the employee cannot return to work in the foreseeable future or where the employee fails to participate meaningfully in the accommodation process. Any such decision should be supported by thorough documentation and a fair process, including clear communication of expectations and consequences. Given the legal risks, particularly under human rights legislation, employers should seek legal advice before proceeding with termination in these circumstances.

Note: Please do not proceed with any final action until consulting legal counsel. I am not a lawyer and this can be a complicated matter.

-HRInsider Staff