Taking time away from work to deal with a medical concern is stressful enough without worrying about whether you will still have a job when you’re ready to return. In British Columbia, employees may be entitled to several job-protected leaves related to illness or injury. While these leaves are generally unpaid, they provide job protection and generally entitle an employee to return to their previous position or a comparable position when the leave ends.
Job-protected leave generally means that you cannot be fired for reasons related to the leave, but this does not necessarily guarantee that there will be a job when you come back. Employers can still make legitimate business decisions, including restructuring or eliminating positions, while an employee is away on leave.
In short, an employer can legally terminate an employee who is on medical leave in certain scenarios. However, they cannot dismiss an employee because they are on job-protected medical leave. It’s important, whether you’re a worker or an employer, to understand the nuance.
Understanding the type of leave involved, the reason for the termination, and the employee’s rights under the Employment Standards Act (ESA) and Human Rights Code is important for both employers and employees.
Types of medical leave in B.C.
The term “medical leave” may refer to several different types of job-protected leaves under B.C. employment law.
Illness or injury leave (sick leave)
Under the ESA, employees in B.C. who have worked for their employer for at least 90 consecutive days are entitled to up to five paid days and up to three unpaid days of protected medical leave per calendar year. This is the most basic type of medical leave.
Serious personal illness or injury leave
Regardless of how long they’ve been employed, all employees are entitled to up to 27 weeks of unpaid, job-protected leave within a 52-week period, to recover from a serious illness or injury.
This type of leave requires a certificate from a healthcare provider stating that the employee is unable to perform their job duties due to illness or injury.
Critical illness or injury leave
This type of leave allows an employee to take time off to care for a family member who is seriously ill or injured. Employees may take up to 36 weeks to care for a child, or up to 16 weeks to care for an adult family member.
When can an employer terminate an employee on job-protected leave?
The ESA provides significant protection for employees taking job-protected leave. In general, an employer cannot terminate or lay off an employee, or change the conditions of the employee’s employment, because the employee is taking a job-protected leave.
However, this does not mean that an employee can never be terminated while on leave.
One situation in which an employee may be terminated while on medical leave is if the job they were in genuinely no longer exists, and there is no similar job that they can be transferred to. This may be the case if a company substantially changes its operations during the time that you are on leave, or if the company goes out of business. If this is the case, the employer is still required to pay you compensation for length of service (severance pay), up to the last day of employment
Importantly, an employee does not lose their entitlement to compensation for length of service simply because they were on job-protected leave. For example, if an employee reaches their five-year anniversary while on leave, their period of employment will generally continue to be counted for purposes of determining their statutory entitlements.
What if an employee’s position still exists?
If the employee’s position continues to exist, terminating an employee because they took medical leave can create significant legal risk for an employer.
The BC Human Rights Tribunal says “…it is discrimination to fire an employee based on a concern that they are at risk of developing a disability that might affect their abilities.” If an employer, for instance, chooses to terminate an employee who has been on medical leave out of a concern that the employee hasn’t been attending work regularly and therefore isn’t caught up on day-to-day operations, or out of concerns that the employee may not be able to fulfil their job duties upon return due to complications of their illness or injury, this could be grounds for a human rights complaint alleging discrimination based on disability, as well as other potential claims arising from the termination, such as wrongful dismissal.
If an employee’s position is eliminated or made redundant while they are on job-protected leave, the employee may return to a similar position (e.g. the same job on a different team or in a different department, or a different role requiring a similar skillset). Employers should communicate with employees who are on leave about significant changes affecting their position and ensure that they comply with their obligations under the ESA and human rights legislation throughout the leave and return-to-work process.
Importantly, the employer must be able to demonstrate that any decision to change the employee’s position was not made because of the employee’s protected leave or disability.
Other employee entitlements while on illness or injury leave
Employees on any kind of job-protected leave continue to be considered employees while they are away from work. Benefits that accrue over time, such as annual wage increases, insurance benefits, and annual vacation entitlements, will continue to accrue as if you were working as normal.
Employees should review their employment agreement, workplace policies, benefits plans, and the applicable legislation to understand what happens to benefits, vacation, wages, and other entitlements during an extended leave. It is also important for employees and employers to establish an appropriate method of communication while the employee is away.
Employers may need updated information about the employee’s anticipated return date and any restrictions or limitations that may affect their ability to return to work. Employees, in turn, should keep their employer informed of material changes that may affect their expected return or ability to perform their duties.
Where an employee requires accommodation when returning to work, the employer may also have a duty to participate in the accommodation process and develop an appropriate return-to-work plan.
Key takeaways
Being on medical leave does not make an employee completely immune from termination. However, employers cannot simply terminate an employee because they are away on a job-protected leave or because of a disability.
For employers, it is important to carefully consider the reason for any termination involving an employee on medical leave and to document the legitimate business reasons for the decision. Employers should also consider their obligations under both employment standards legislation and human rights law.
For employees, being terminated while on medical leave does not necessarily mean that the termination was unlawful. The circumstances surrounding the termination, including whether the position was genuinely eliminated and whether disability or protected leave played a role in the decision, will be important.
If you have questions about medical leave, the employment lawyers at Ascent can help. Whether you are an employee navigating medical leave or an employer managing an employee’s leave and return to work, our team can provide practical guidance on your rights and obligations and help you navigate the process with confidence – contact us today!
