Ask the ExpertSick leave for extended period of time
hri_Admin Staff asked 4 years ago

Hello, I have a question regarding a sick leave and employee\’s eligibility and the same employer\’s rights. How long does an employer have to keep a job open for an employee on sick leave? The Government of Canada Website indicates that an employee is protected for any absence not exceeding 17 weeks but what in case the employee exceed the limit, what are the employer\’s rights in case when employee delivers doctor\’s certification for extended period of time, over these 17 weeks. Please let me know, thank you.

1 Answers
Glenn Demby Staff answered 4 years ago

The Q of how long is too long for an employee on sick or disability leave to be absent is a very common and difficult one. The reason is that whatever is keeping the employee home is likely to be deemed a “disability” under human rights laws requiring accommodation to the point of undue hardship. Holding the job open is such an accommodation. But the Q then becomes: At what point does the wait cross over from reasonable accommodation into undue hardship?

Answer: You don’t have to wait until all hope is gone. The point of undue hardship is reached if after you re-work the job to an employee’s limitations, there’s still no prospect for a return in the “reasonably foreseeable future.”
Of course, stating the rule is much easier than applying it to actual cases. Suggest you check out an HRI story that provides 2 actual case examples–one in which the accommodation was found reasonable and the other in which it was found undue hardship–to see how courts and arbitrators resolve this issue.
HRI also has a Model Leave of Absence Policy you should check out.
Hope this helps and sorry for the delay in responding. Glenn