Canadian Employment Law Today

November 17, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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ANSWER: Employees on medical leave, like all employees in the workplace, are required to co- operate with their employer when it comes to their accommodation needs. In order to receive medical leave in the first place, employees are required to request accommodation, demon - strate a need for accommodation by providing the specifics of their circumstances, and coop- erate with their employer to find a suitable ac- commodation. Once on medical leave, the requirement that an employee co-operate in the accommodation process does not end. Rather, given the right of employers to information about an employee's medical status and accommodation needs, an employee on medical leave should expect rea - sonable contact with their employer during their absence, particularly if the leave does not have a predetermined end date. In the event that an employee on medical leave fails to respond to attempts by their em - ployer to get information on their status and expected return date, the employer may be able to take the position that the employee has been terminated for abandoning their employment. In law, abandonment of employment oc - curs when it is clear that an employee has no intention of returning to the workplace. While there is no clearly defined length of time after which an unauthorized absence becomes em- ployment abandonment, courts considering whether an employee has abandoned their em- ployment will ask — as outlined by the Ontario Superior Court of Justice — if the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract. In assessing whether this threshold is met, the court will consider objective factors, including: • A failure to report to work and fulfill em - ployment obligations (including a failure to heed warnings in multiple pieces of correspondence) • A failure to follow the employer's policies and procedures for return to work, includ - ing the employer's short-term disability plan • A voluntary and undisclosed relocation with a lack of intention to return and re- sume employment with the employer. Notably, if an employer wishes to have an unresponsive employee on medical leave termi- nated for abandoning their employment, it will be important for the employer to make the em- ployee aware of the consequences of continued failure to respond. An employer should make it clear through correspondence addressed to the employee that if the employee does not pro- vide the requested information on their status and expected return to work date, they will be considered to have abandoned their position. This is critical because failure to communicate, on its own, may be insufficient to indicate an intention to abandon employment. If there is any confusion or doubt as to whether an em - ployee has abandoned their position, the onus is on the employer to clarify with the employee whether they have resigned: see Hettrick v. Triple F Paving. Once an employee is found to have aban - doned their employment, the legal consequenc- es of abandonment are the same as if the em- ployee had resigned from their position. They are not entitled to any notice of termination or severance pay. Further, if an employee stops co-operating in the accommodation process, including failing to provide reasonable updates as to their medi - cal status and return-to-work date, the employ- er's obligation to continue accommodating the employee through providing medical leave may come to an end. Specifically, employers have a duty to accommodate employees to the point of undue hardship. Undue hardship occurs if an accommodation would create onerous con - ditions for an employer, including intolerable financial costs or serious disruption to business. Where undue hardship can be established on the basis of objective, real, direct and quantifi- able evidence, the employer need not provide an accommodation. In the context of an em- ployee on leave who is refusing to provide re- quired information, the employer may be able to take the position that continuing to accom- modate the employee would cause undue hard- ship because it creates serious uncertainty and imposes financial cost on the employer. For more information, see: • Betts v. IBM Canada Ltd, 2015 ONSC 5298 (Ont. S.C.J.). • Hettrick v Triple F Paving, 2021 ONSC 208 (Ont. S.C.J.). Tim Mitchell practises management-side labour and employment law at McLennan Ross in Cal- gary. He can be reached at (403) 303-1791 or tmitchell@mross.com. Canadian HR Reporter, 2021 2 | | November 17, 2021 November 17, 2021 COMPANY'S on page 7 » Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com MCLENNAN ROSS LLP, CALGARY with Tim Mitchell Unresponsive employee on medical leave QUESTION: If an employee on medical leave doesn't respond to attempts to get information on their status and expected return date, what's the threshold for termination? Employees on medical leave, like all employees in the workplace, are required to co- operate with their employer when it comes to their accommodation needs. CREDIT:BET_NOIRE iSTOCK

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