unresponsive employee

[Kailyn Mayer]

#93932

Forum: Private

Hi Team,

One of our remote employees in BC has been sick and is unresponsive to emails for 2 weeks now. We have requested a doctor’s note and are still waiting to hear back. We have attempted to reach their emergency contacts with no response.

If this continues, how long do we have to wait to conclude the employee has quit their job? What are the steps we must follow in accordance with the ESA of BC in this sort of case. Are we legally allowed to claw back any of this paid sick leave if the employee fails to produce proof of illness?

Thank you,
Kailyn M.

[Haley O’Halloran]

#93933

Hi there!

Firstly, let’s address your employee not providing a doctor’s note per their sick leave for an extended period of time now. Illness or injury leave is employee-initiated and you have respected this by granting the employee their sick leave. Since I am unsure how long this employee has been with your company, I will assume they have been there for a couple of years, meaning they are entitled to take up to 5 paid days and 3 unpaid days of sick leave per fiscal year. Since they have passed their allotted paid and unpaid sick leave days, they are now on an fully unpaid absence. If they are unwilling to provide a doctor’s note explaining why they have been absent (which they should have done as soon as they were capable of doing so), and if they or their emergency contacts will not respond to your messages during working hours, you are absolutely in the correct position to terminate their employment. However, you were inquiring whether you are in the right time frame to assume the employee has quit their job.

Your employee is participating in job abandonment, meaning the employee fails to report to work as required, exhibits an intention of not returning to work, and does not notify the employer of their intention to quit. Unfortunately, alleging job abandonment presents numerous challenges for employers, primarily due to the high burden of proof required and the potential legal ramifications of a wrongful dismissal claim. Fortunately, you have exercised due diligence by contacting the employee and their emergency contacts over the past two weeks.

BC law doesn’t specify a ‘reasonable’ period for unexplained absence before it’s seen as job abandonment. It depends on the circumstances and the employer’s ability to prove the employee’s intent to leave the job permanently. So, you can “assume” your employee has quit their job and go forward accordingly, but that could lead to legal ramifications. My best advice is to just terminate the employee. You are allowed to request a doctor’s note, but your employee is not legally obligated to supply you with one – meaning you should just accept that you will not get back the amount you paid this employee for their (assumed) 5 paid days of sick leave but you will save a lot of money by not having them on your payroll anymore – what they did was disrespectful to you and your business! Give them fair notice, cut them loose when that notice is up, and move on.

In BC, employers can write to an employee to let them know that their job will end by a certain date, but notice cannot *begin* if an employee is on vacation, on leave, or unavailable to work due to medical reasons, amongst other conditions. Their leave has ended, so it is currently voluntary and they are refusing to communicate with you. They won’t provide you with any information regarding their leave or a doctor’s note, so you don’t know if they are unavailable to work due to the extent of their medical condition(s).

To let go of this employee, your options are to:

-Give the employee 2 weeks of written working notice.
-Pay the employee for 2 weeks and let them go immediately, or
-Give the employee 1 week of working notice and 1 week of pay.

Since your employee is not working, I would give them 2 weeks of pay and let them go. Hopefully this never happens again!

-HR Insider Staff

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