Ask the ExpertLong-term illness and injury leave vs medical leave (Human Rights Act)
hri_Admin Staff asked 5 years ago

How does long-term illness and injury leave differ from the current medical leave under Alberta Human Rights Act? My company has long-term disability benefits which an employee may be eligible for after 17 weeks of illness or injury. According to Alberta Employment Standards, employees are protected for a maximum of 16 weeks. What does this mean if an employee is not fit to return to work after the 16 weeks? Could the employer then terminate their position? Prior to Bill 17, I was under the impression that an employer must accommodate the leave of absence until it becomes evident that the employee is not getting better and return to work is not likely. (Approx. 2 years was a benchmark for determining that). I would appreciate clarification as the Alberta government did not exactly provide resources beyond basic information.

1 Answers
Glenn Demby Staff answered 5 years ago

There is NO medical leave under the current Alberta ESC. But once Bill 17 takes effect on Jan. 1, employees will get 16 weeks’ unpaid long-term illness and injury leave. And you’re right, once  leave ends, return to work will be governed by Alberta Human Rights Act. Because the injury/illness is likely to constitute a “disability,” you must make accommodations to the point of undue hardship.
Your point about holding open the position until it becomes clear that the employee isn’t getting better and won’t be able to return is basically right. The hard part will be how and when you can make that determination. The accommodations process requires you to get an assessment of the  employee’s capabilities and needs from his/her physician. You can ask for a PROGNOSIS but not a DIAGNOSIS. The employee also has to cooperate and furnish the medical info you need to make the assessment–employee failure to cooperate in the accommodations process is generally considered legitimate grounds for termination.
If the initial medical assessment doesn’t give a definitive and reasonable return date, you may need to keep the position open pending a later assessment. Although you don’t have to wait forever, the Q of how long is too long, unfortunately, varies from case to case.
The other key issue in determining reasonable accomm v. undue hardship will be the job-related accommodations the employee needs, e.g., with regard to work schedule, work duties, location, etc.
Bottom Line: Bill 17 doesn’t change the accommodations rules with which you’re apparently familiar; all it does is create a new set of leaves (including but not limited long-term illness and injury) to which those accommodations requirements apply.
Hope that helps and Merry Xmas. Glenn 203 354-4532