Illness is inevitable. It is the rare employee who has not had to take a sick day (or two) due to a cold or flu. But what about where an illness is chronic or long term? What are an employee’s legal rights and obligations when she must take a prolonged leave from work due to illness or disability? Should she seek legal advice?
Common Employee Concerns:
How much do I have to tell my employer about my condition? Am I entitled to disability insurance? Can my employer fire me while I am off sick?
We frequently advise employees on issues like these, and others. While the answers to these questions are not always straightforward, there are a few basic legal principles regarding disability that all employees should know.
Some Key Points:
- Employers can, should, and usually will, ask that an absent employee provide details regarding his illness or disability. Relevant information will include your prognosis for recovery, estimated return to work date, and any requirements for workplace accommodation.
- Section 13 of the BC Human Rights Code prohibits an employer from dismissing or discriminating against an employee on the basis of mental or physical disabilities. Employers have a “duty to accommodate”, meaning that they are generally required to allow lengthy absences from work as a form of accommodation. The exception to this is where the employer can show that the dismissal or discrimination is based on a bona fide occupational requirement, which will include demonstrating that it is impossible to accommodate the employee without imposing “undue hardship” on the employer.
- Generally speaking, and absent any human rights issues, an employer may dismiss an ill or disabled employee so long as the employer provides reasonable notice of the dismissal (or severance in lieu of notice). Your severance entitlement will depend on a number of factors including the terms of any written employment contract, the nature and length of your employment, and your age and future job prospects. The amount you are entitled to receive will also depend on whether you are receiving benefits under a disability plan.
- Just because you are absent due to illness or disability, this does not give your employer legal “just cause” to fire you.
- Finally, there will be some instances where an employer is able to terminate the employment relationship without incurring any severance liability. This occurs where the employment contract has become “frustrated”. According to the Supreme Court of Canada, an illness or disability which permanently incapacitates an employee from performing her duties under an employment contract has the effect of frustrating the contract and bringing it to an end.
Are you off work due to an illness or disability and have questions about how this will affect your employment status? Contact us!
Watch Erin Brandt’s video “Can you fire a sick employee?” here:
NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.