As an employer, it is very important to be aware of and understand your obligations should an employee in your company fall seriously ill and be unable to continue to work. For one Ontario employer, the consequences have proven to be quite costly!
On July 12, 2010, the Human Rights Tribunal of Ontario awarded a woman $22,640 for general damages and lost wages after ruling that her former employer discriminated against her on the basis of disability. The employer, a property management firm, fired Elsa Torrejon days after she informed them of her diagnosis with breast cancer in early 2009. After informing her employer of her illness and requesting an indefinite leave to receive treatment, she was dismissed from her employment. Her supervisor admitted that he had failed to educate himself on the provisions and requirements of Ontario’s Human Rights Code and in particular, employers’ obligations to accommodate employees with disabilities to the point of undue hardship.
In Manitoba, The Employment Standards Code is very specific and requires employers to provide employees with three days of unpaid family leave for health-related reasons. However, under The Human Rights Code, all employers have a duty to accommodate an employee’s disability to the point of undue hardship. Accommodation will often include a leave of absence to allow the employee time to deal with and recover from illness. There is no fixed rule as to how long a disabled employee may be absent before the employer meets its duty to accommodate to the point of undue hardship. Human Rights decisions indicate that each case must be considered on its own unique set of circumstances and depends on the nature of the employee’s condition, the employee’s ability to resume performing the essential duties of his or her job and the employer’s ability to operate while accommodating the disability. It should be noted, however, that the law does not require an employer to provide a paid leave of absence unless stated in a policy, provided for in an employment agreement and/or collective agreement, or is protected by insurance benefits.
The Supreme Court of Canada has ruled that the employer has a legal obligation to show that it has considered all viable forms of accommodation. There are, however, some limits to the employer’s obligation to accommodate. For example, an employer is not required to maintain a position indefinitely for an employee who cannot attend work due to a disability. Before considering dismissal, employers must ensure that they have done everything possible to reasonably accommodate the employee and should ensure that they have medical evidence indicating that the employee cannot do the job he or she was hired for and will not be able to do so in the foreseeable future.
This article was prepared by:
TRACEY EPP
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This article represents general information and is not legal advice. Please contact us if you would like legal advice that is tailored to your particular circumstances. We would be happy to help.
