EI Leave

Milena Dobreva replied 2 months ago

Incorrect. In BC and ON there are no provisions for protected extended medical LOAs. BC gives 8 days, ON gives 3 days. AB has a protected medical LOB = 16 weeks.

Rick Tobin Staff replied 2 months ago

Milena, Which jurisdiction are you enquiring about, because there is nuance to the law in each jurisdiction; however, in BC:

“Terms and conditions of employment protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee’s written consent as a result of a leave under this Part. See also s.56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer’s business operations have been suspended or discontinued at the time the employee’s leave ends, the employer must comply with s.54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98.”

Milena Dobreva replied 2 months ago

Rick, Sec. 54 refers and applies ONLY to ” a leave under this Part” (Part 6 of BC ESA). Which protected Leave listed in Part 6 of BC ESA covers EI medical leave?
The Illness or Injury Leave (49.1) only provides for 8 protected days due to illness (5 paid +3 unpaid). Looking forward to your answer. Thank you.

Rick Tobin Staff replied 2 months ago

Although this is true to the letter of the law, cases have established precedence whereas employees on longer medical leave have been found to have protected employment status so long as it did not cause undue harm to the company. You may be legally compliant; however, you are absorbing some risk given that the employee in question is taking a short term medical leave (less than 3 months) that may put you in a difficult position if the employee was to file a claim of wrongful dismissal. If a strong case could be made that the position was eliminated for business reasons and not at all impacted by the employees absence due to illness, you would have far less risk, but it would depend on many other variables. If, say you had to replace the person because the position was vital to business operations, a key employee, then that would also impact your legal risk.

The long and short of it is that there are many variables that could and would impact your legal exposure through terminating an employee on approved medical leave, especially a short-term medical leave. Compliance to legislation is one facet, but case precedence and perception of the courts is another.

You are not the first employer to be caught in this predicament of maintaining business continuity and operations while also respecting an employees rights to medical leave. Often these put a burden on an employer who needs to staff accordingly but are stuck in a wait and hold pattern.

I cannot give you direct legal advice without being engaged and knowing a lot more about the situation, but I can propose caution. Without a doubt, the employee in question will view an action as retaliatory and file a dispute – this is almost certain – and a claim will be costly, drawn out, and potentially cost you more in the long run than a termination with severance.

Milena Dobreva replied 2 months ago

I could not be happier with the provided explanation. Thank you!