There’s a lot going on here so let’s take it one issue at a time:
1, Leave of Absence: Under Sec. 239(1)(a) of Can. Labour Code, you can’t dismiss an employee on medical leave of absence IF she had 3 months’ consecutive service before the injury. So if the accident happened within the first 90 days, the leave of absence protection doesn’t apply.
2, Accommodation of Non-Work Injury: Depends on the law involved:
A. For purposes of the Canadian Human Rights Code, what matters isn’t whether the concussion was work-related but whether it counts as a “disability.” If so, you would have to accommodate to the point of undue hardship. Whether keeping the job open until she’s fit for duty constitutes undue hardship depends on the circumstances involved, e.g., the position, how long she’ll be out, etc.
B. For purposes of the workers’ comp law of whichever jurisdiction you’re subject to (since there is no federal workers’ comp), return-to-work requirements kick in only for work-related injuries. In other words, since the concussion wasn’t work-related, workers comp RTW rules won’t apply.
Summing up, you don’t have to worry about Sick Leave (assuming she didn’t have the required 90 days’ service) or workers’ comp RTW, but you may have a duty to accommodate under human rights laws to the extent the concussion injury is a disabling one. In that case, activate your normal accommodations processes. Hope that helps. Glenn.
