Lay Off

[Andrea Grima]

#98005

Forum: Private

We currently have an employee on a medical leave which has not technically been approved, since Dec. 10 because they have not provided a FAF that was requested. Only a medical note stating the employee had advised the doctor she was unable to work. This employee says they have and anxiety disorder (pre existing) which she stated when she was hired – she did not need an accommodation. Before the leave she had a performance conversation with the manager. They are a head chef and the feedback about the food and the clients were not happy, the manager advised on what the complaints were and made suggestions to improve. The employee said this triggered them and they are now unable to work. Along with the fact that the employee wants more autonomy – more responsibility. The employee then send and email sating that work had impacted her mental health and is now unable to work. Therefore we put in a WSIB claim as advised. We still have not indication of when they will come back to work- it has been over a month now. We have had to outsource for food preparation in order to feed our clients. It is looking like the outsourcing is more cost effective are clients are happy. This is a health care facility where the service and care are important to us. If we terminated her a this point with no information or no timely information what are the risks or if we lay her off what would that look like? Just curious and seeking opinions on this.

[Haley O’Halloran]

#98006

The organization is currently managing an employee absence related to a claimed mental health condition, which engages human rights, employment standards, and WSIB considerations. Although the employee’s medical leave has not been formally approved due to the absence of a Functional Abilities Form (FAF), the employee remains protected while medical and WSIB processes are ongoing. The timing of the leave—following a performance discussion—and the existence of a WSIB claim significantly increase legal risk if any employment action is taken prematurely.

At this stage, terminating or laying off the employee would carry a high risk of legal challenge. A termination could trigger allegations of disability discrimination, failure to accommodate, or WSIB reprisal, particularly given the unresolved medical status and active claim. A layoff is not a lower-risk alternative, as layoffs during medical leave are often viewed as constructive dismissal or discriminatory unless clearly permitted by contract and demonstrably unrelated to the employee’s health status.

The employer is entitled to request functional medical information to assess accommodation and return-to-work options, and the employee has a corresponding obligation to cooperate in this process. The absence of a FAF limits the employer’s ability to assess accommodation, but tribunals expect employers to make multiple good-faith attempts to obtain information, provide clear explanations for why it is needed, and allow reasonable time for compliance before drawing conclusions.

The lowest-risk approach at this time is to continue formally requesting medical information, maintain communication, document operational impacts and accommodation efforts, and seek clarity on the WSIB claim status. While outsourcing has addressed service and cost concerns, it should not be relied upon as justification for employment action during a protected leave. Employment decisions become more defensible only after sustained non-cooperation, clearer medical conclusions, or resolution of the WSIB claim.

Important note: This is NOT legal advice, and if you are moving forward with these matters, I highly suggest looking into legal counsel.

-HRInsider Staff

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