If an employee is injured at work, they can usually claim workers compensation benefits while they recover. If an employer fires an employee while on Workers Compensation leave, the employee will normally have a claim through WorkSafe BC. WorkSafe BC may even investigate the dismissal and fine the employer.
There is no hard and fast time limit for how long a job is protected while an employee is on leave, but you, as an employer, have a duty to accommodate a return to work for the injured employee.
However, if the disability is long-term and it seems the prospect of returning to work is unlikely, as an employer you may terminate the position with just cause, as long as it can be demonstrated that you were not discriminating against the employee based on their disability.
Disability includes any unintentional physical or mental condition that has some measure of permanence.
An employer may contend that the employment contract has been “frustrated” by the employee’s ongoing incapacity for the foreseeable future, thus warranting a dismissal. In this context, it would be unreasonable for the employer to continue waiting for the worker to recover their health and resume normal occupational duties. A frustration of contract allows both employee and employer to be released from the obligations set forth in the employment agreement.
Keep in mind, you obligation to the employee for accommodation is similar pay and responsibility, if your business requires that you fill that empty spot to reasonably function, then you may have to do just that, and when/if the employee returns to work, assign them a similar position that is available.
You are definitely in a difficult position and one with a great deal of legal risk, consulting a lawyer for specific guidance would be recommended.
