HIRING A REPLACEMENT FOR AN EMPLOYEE ON A LEAVE OF ABSENCE:
If an accommodated employee is on a leave of absence stipulated by Ontario’s Employment Standards Act, 2000 (the “ESA”), the employee has a presumed right to return to work in the same position (if the position still exists or similar duties are still performed), or be given the opportunity to return to a comparable position. Employers cannot ‘punish’ employees who take a leave of absence authorized by the ESA, or a leave that is otherwise permitted by the employer or by applicable law, particularly if the leave of absence is attributable to a disability experienced by the employee, which is also protected by Ontario’s Human Rights Code (the “Code”).
If a replacement employee is hired, the employer may even be forced to terminate the replacement to accommodate the returning employee and, if so, liability for pay in lieu of notice (and other statutory rights) may ensue, particularly if the replacement cannot be placed in another, satisfactory position. If a replacement employee is hired, the employment offer should specifically address this, including by defining the temporary nature of the hire and the limited entitlement to pay in lieu of notice.
FRUSTRATION OF THE EMPLOYMENT RELATIONSHIP:
If an employee is absent from work due to a disability for an extended period of time, it may constitute a “frustration” of the employment contract, in which case the employer may only be lawfully required to pay the employee his or her entitlements under the ESA, which may include severance pay, being the statutory minimum at law. However, there is no judicially set time period to apply to determine the event of frustration, particularly if the employee has long-term disability benefits available during the leave of absence. Typically, such benefits make it more difficult to determine if a frustration has taken place. In addition, employers must continually consider accommodating the employee, to the point of undue hardship, with the objective of the employee returning to work when capable of doing so. Employers should carefully consider this duty before determining that a frustration of the relationship has occurred. The employer may need to consider different return-to-work accommodation plans during the leave of absence and before taking the position that a frustration has occurred, such as, for example, periodic or temporary return-to-work options and possibly requesting and reviewing medical information for the employee regarding the employee’s ongoing and future treatment plan and potential ability to return to work in the same position, which may require modification. Usually every case is unique and has its own, distinct considerations, particularly depending on the length of the ongoing leave of absence, efforts to accommodate the employee and facilitate a return to work, either temporarily or longer and usually the step of affirming with the employee’s treatment provider(s) whether the employer is unable to return to work for the foreseeable future, even with accommodation.
ACCOMMODATING AN EMPLOYEE WITH A DISABILITY:
Under the Code, employers must accommodate employees with any disability to the point of “undue hardship”. This is historically a very high threshold for employers to justify, legally. Employers must permit any accommodation request, unless denying the request is justified based on objective evidence reasonably satisfactory in the circumstances. Generally, if an employee has a documented restriction regarding his or her inability to perform regular duties, the employer may be required to review and consider the employee’s current duties, including to decide if the employee is able to continue performing the bona fide duties for the position, which may require some modification to accommodate the employee’s specific disability. If, for example, modified duties could be achieved, the employee is likely entitled to continue in the same position, as modified. Only is such modification is virtually impossible, to the point of “undue hardship” to the employer, should the employer review and consider other positions and duties that would accommodate the employee’s documented restrictions. In that case, the employer is only obliged to pay the accommodated employee based on the duties and hours of work actually performed by the employee, including in the modified position, if any. Accommodation of any employee should always be reviewed fairly regularly, including to facilitate the employee returning to his or her regular duties as soon as reasonably capable of doing so.