BC ESA Serious Illness or Injury Leave

[Aleesha Van Damme]

#101872

Forum: Private

Good morning,

I have an employee who was injured in a motor vehicle accident outside of the workplace and has been off work for a period of time that exceeds his ESA entitlements. He has provided a Functional Ability Form that clears him to return to work, but before returning informed us that ICBC recommended a medical clearance from his sports medicine doctor in addition to the FAF he previously provided. We are in communication with the employee; however, there is a bit of a delay in providing the required documentation needed for me to continue his leave. What is the employer’s best practice here? We do not have any LTD benefits available through the employer. This employee has also noted surgery in the near future, which again, we wouldn’t have any further leave eligibility for this year. I realize there are legislative protections for injury, and I want to ensure we are providing the best guidance.

Thank you

[Haley O’Halloran]

#101874

Although the employee has exhausted their job-protected leave under the applicable employment standards legislation, that does not necessarily end your obligations. If the employee’s injuries amount to a disability under human rights legislation, the employer continues to have a duty to accommodate to the point of undue hardship. The focus should therefore shift from statutory leave entitlements to the accommodation process. It is appropriate to maintain regular communication with the employee while requesting reasonable medical information needed to determine their fitness to return to work or whether additional leave remains medically necessary.

In this situation, the employee has already provided a Functional Ability Form clearing them to return to work but has since advised that ICBC has recommended additional medical clearance from their sports medicine physician. As a best practice, I would allow a reasonable amount of time for the employee to obtain this documentation before making any employment decisions. You may wish to confirm in writing that the employee remains on a medical leave pending receipt of the updated information and provide a reasonable deadline for submitting the documentation. If delays continue, maintain communication with the employee to understand the reason and determine whether additional time is warranted.
The anticipated surgery should be treated as a separate accommodation issue rather than as a question of whether the employee has remaining statutory leave available.

If the surgery and recovery period are medically supported, the employer should assess whether an additional unpaid medical leave is a reasonable accommodation. The absence of employer-sponsored LTD benefits does not affect the duty to accommodate, although it may impact the employee’s income replacement options. The key is to base decisions on current medical information rather than assumptions about the employee’s future ability to work.

Overall, your approach should be to continue engaging in the accommodation process, request only the medical information reasonably necessary to assess fitness for work and any restrictions, and document all communications. Provided the employee is actively cooperating and making reasonable efforts to obtain the requested medical information, granting additional time is generally the most defensible course of action. If, at some point, the employee stops communicating or is unable to provide sufficient medical information after reasonable opportunities have been given, you would then be in a better position to assess what further steps, if any, may be appropriate.

-HRInsider Staff

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