The Legalities of Terminating an Employee on Medical Leave in Ontario

In Ontario, employment law is designed to protect employees from unjust treatment, especially during vulnerable times such as medical leave. Terminating an employee on medical leave involves navigating a complex legal framework. Understanding these laws is crucial for employers to ensure compliance and for employees to be aware of their rights.

Under the Ontario Employment Standards Act (ESA), employees are entitled to various types of leave, including sick leave and family medical leave. These leaves allow employees to take time off work to deal with their health or that of their family members without fear of losing their job.

Key Points of the ESA on Medical Leave:

• Sick Leave: Employees are entitled to up to 3 days of unpaid sick leave per calendar year.
• Family Medical Leave: Employees can take up to 8 weeks of unpaid leave to care for a family member with a significant medical condition.

In addition, under the Ontario Human Rights Code (OHRC), employees are protected from discrimination based on disabilities. This includes the right to take leave and expect accommodations without facing discrimination or termination.

While employers can legally terminate employees for various reasons, firing someone on medical leave is fraught with legal risks. Here are some critical considerations:

1. Termination for Cause vs. Without Cause:
   • Termination for Cause: Firing an employee for cause while they are on medical leave requires substantial proof of severe misconduct unrelated to their leave. Examples might include fraud, theft, or significant breaches of company policy.
   • Termination Without Cause: Even if an employer wants to terminate an employee without cause, it cannot be related to the employee’s medical leave. They must provide proper notice or severance as mandated by the ESA and common law.
2. Human Rights Considerations:
   • Under the OHRC, terminating an employee on medical leave could be considered discriminatory if the leave is due to a disability. Employers must accommodate employees to the point of undue hardship, which includes respecting their right to medical leave.

Although the legal landscape is protective of employees on medical leave, certain scenarios can justify termination, provided they adhere to legal standards:

• Business Closure or Downsizing: If the termination is due to legitimate business reasons such as a company closure or significant downsizing, and it is unrelated to the employee’s medical leave, it may be permissible. Proper notice or severance pay is required.
• Contract Expiry: If an employee is on a fixed-term contract that naturally ends during their medical leave, the contract may be allowed to expire without renewal. However, the employer must ensure the non-renewal is not due to the medical leave.

Employers must avoid several practices that could be deemed illegal:

• Retaliation: Firing an employee for taking or requesting medical leave is prohibited.
• Discrimination: Terminating an employee due to their medical condition or the need for leave can lead to human rights violations.
• Failure to Accommodate: Employers must accommodate employees returning from medical leave unless it causes undue hardship. This could involve modifying job duties or providing a gradual return-to-work plan.

Ontario case law provides valuable precedents on this issue:

• Chandran v. National Bank of Canada (2010): The court ruled that an employee’s termination during medical leave was discriminatory as the employer failed to provide reasonable accommodation.
• Tremblay v. 1168531 Ontario Inc. (2015): The Ontario Human Rights Tribunal found that terminating an employee for poor performance while on medical leave was unlawful, as the performance issues were related to the employee’s medical condition.

To avoid legal pitfalls, employers should:

1. Document Performance Issues: Clearly document any performance or behavioral issues unrelated to medical leave.
2. Seek Legal Advice: Consult with employment lawyers before making termination decisions.
3. Provide Accommodations: Make reasonable efforts to accommodate employees returning from medical leave.

Employees should:

1. Know Your Rights: Familiarize yourself with the ESA and OHRC provisions regarding medical leave.
2. Document Communications: Keep records of all communications with your employer regarding your leave and any accommodations requested or provided.
3. Seek Legal Counsel: If you suspect your termination is related to your medical leave, consult with an employment lawyer.

Terminating an employee on medical leave in Ontario requires careful legal consideration to avoid violations of the ESA and OHRC. Employers must ensure that any termination is not related to the medical leave itself and must provide proper notice and severance. Employees, on the other hand, should be aware of their rights and seek legal advice if they face termination during or after medical leave. Navigating this complex area of law demands a balance of legal compliance and compassionate management practices.