Can you fire someone on medical leave?

A worker with a broken arm. Stock photo by Getty Images

Here’s a thorny legal and HR issue to give pause to even the steeliest of employers: firing an employee who’s on medical leave.

It may be begging for a lawsuit, but employers have rights too. A recent case from Ontario’s Human Rights Commission shows you can terminate an employee on leave, with a few caveats, of course.

Richard Albert was on an approved two-month medical leave scheduled to end on June 2, 2014. His doctor suggested another two months, but his employer, AMS Imaging, fired him before he could provide the doctor’s note.

AMS covered all the legal bases, paying six weeks termination pay in lieu of notice. However, Albert found the timing a bit suspect and basically accused AMS of firing him because of his disability and the resulting medical leave.

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As you could guess, that’s generally not kosher. Federal and provincial human rights laws prohibit discrimination on the grounds of disability, and some businesses have paid the price for firing ill employees.

An employer has a legal duty to accommodate sick or disabled employees. This can mean granting medical leave or changing their duties to allow them to continue working.

There are limits, though. Generally, there are two situations in which you can fire someone on medical leave:

Undue hardship: this means that accommodating the ill employee puts an unreasonable strain on your business. This is a relative measure and courts or tribunals set a high threshold. It typically consists of two criteria:

  • Cost: the actual, quantifiable financial costs of accommodating the employee, as well as reasonably foreseeable future costs. 
  • Health and safety risks: in other words, would accommodating the sick employee put others at risk? This might include a worker with a highly contagious disease, who can’t reasonably work in an office with others.

A third, more unusual criteria for Ontario’s tribunal is the consideration of heritage buildings. For example, if installing wheelchair ramps or elevators would seriously impact the structure of a protected heritage building, those accommodations might be exempted.

See: Firing an employee: what to know

Unrelated termination: basically, the firing has nothing to do with the employee’s leave or disability, it just happened at that time. That was AMS’s argument in this particular case.

The company showed it had experienced declining revenues and had cut staff as a result. Albert was just one of those let go. Another employee resigned and wasn’t replaced.

AMS showed that Albert was a victim of circumstance and he likely would’ve been terminated even if he’d been healthy. Accordingly, the tribunal ruled in favour of AMS.

Firing can also be a disciplinary step, and employers must be careful on this front as well.

Courts and tribunals generally take a dim view of employers who fire any workers — on leave or not — on the first offence without any attempts to warn them or correct behaviour.

An employer should be able to show that this termination was justified. If the employee in question was sub-par, keep documentation of performance reviews, written warnings or other disciplinary steps taken before firing.

Axing an employee on leave looks inherently suspicious, so a smart employer will show that it was done with good reason. If not, you’ll likely face an uphill battle in court.

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