Termination Contractually Req – On Medical Leave

[Aleesha Van Damme]

#98071

Forum: Private

Hello,

I have a unionized employee who is currently on a short-term, job-protected medical leave. While he has been away, our Quality Assurance team has determined that he has failed our audit requirements that form part of our Safety Management Plan, which our company is contractually bound to. This requires us to remove the installer from the field permanently.

I am concerned with the ESA protections, even though this employee is unionized, it is my understanding that where the CA is silent, the BC ESA prevails.

Our client is Fortis BC, and there is no wiggle room in the Safety Management Plan on this as you can imagine, we are working with live gas meters, and the safety requirements are a crucial part of our agreement.

Do we face legal risks with this unique situation we’re faced with?

Thank you.

[Haley O’Halloran]

#98072

This situation sits at the intersection of ESA medical leave protections, unionized employment, and mandatory safety disqualification under a third-party Safety Management Plan (SMP). In British Columbia, although collective agreements generally govern unionized employees, ESA minimum standards still apply where a collective agreement is silent or provides lesser protection, including job-protected medical leave. As a result, the employee’s unionized status does not remove ESA considerations from the analysis.

ESA medical leave protections prevent an employer from terminating or disciplining an employee because they are on medical leave. However, these protections do not insulate an employee from independent, legitimate employment consequences unrelated to the leave itself. Where a decision is driven by objective safety requirements, applied consistently, and required by an external contractual obligation—such as FortisBC’s SMP—ESA does not automatically prohibit employer action.

The primary legal risk in this scenario is not ESA compliance alone, but the perception of reprisal or discrimination, particularly given the timing of the audit outcome while the employee is on leave. Any review by a union, arbitrator, or tribunal will focus on whether the employee would have been removed from the field regardless of the medical leave, and whether the leave played any role, directly or indirectly, in the decision.

It is critical to distinguish this situation from discipline or performance management. A permanent removal from the field based on failure to meet mandatory safety audit requirements should be characterized as a loss of qualification to perform essential duties, not misconduct. Where the SMP provides no discretion and safety-critical work is involved, this framing significantly reduces legal exposure compared to a disciplinary approach.

Despite this, the employer’s duty to accommodate under human rights legislation remains. Before concluding that termination is unavoidable, the employer must consider whether alternative non-field work, reassignment, or retraining is possible without undue hardship, and whether the collective agreement permits such options. Thorough documentation of this analysis is essential, particularly where no viable alternatives exist.

Overall, while there is legal risk, it is manageable if the employer can clearly demonstrate that the decision is driven solely by mandatory safety requirements, applied consistently, and unrelated to the medical leave. The defensibility of the outcome will depend less on the decision itself and more on the process, documentation, and language used, including careful avoidance of any suggestion that the employee’s leave influenced the outcome.

Important note: I am not a lawyer and this advice does not count towards contacting legal counsel.

-HRInsider Staff

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