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Apr 10, 2019

You Asked, We Answered: Managing Absenteeism in the Workplace

By Michael F. Horvat

Q.           Are you able to hire a replacement employee when an accommodated employee is absent on long-term leave?

A.            Yes, an employer is entitled to replace an employee on leave. However, if the absent employee has taken a long-term leave protected under the Employment Standards Act, 2000, they have a preferential right to return to their prior position if the position still exists (or duties are still performed), or to another comparable position if that position (or duties) no longer exists. The absent employee should not be disadvantaged in their return for having taken permitted leave. This could result in the termination of the replacement employee, including the payment of notice and severance (if applicable), if no other position can be found. However, such eventuality can be defined under the replacement employee’s contract and can be addressed when hired into the temporary replacement position.

Q.           We have an employee with documented restrictions such that she cannot perform her regular duties. Are we able to demote her?

A.            The obligation of the employer is to accommodate the employee to the point of undue hardship. This includes a review of the employee’s existing duties to determine if she can perform the bona fide requirements of the position, as may be modified. If modified duties can be provided, the employee should continue in her position. However, if such modifications are not possible, then the employer should review other jobs and duties which can meet her restrictions. The employer is entitled to pay the accommodated employee in accordance with the duties and hours of work she actually performs. Such accommodation should be subject to regular review with the goal of returning her to her prior position and duties when capable.

Q.           How long does an employee have to be absent for before an employer can conclude that the contract has been frustrated?

A.            There is no set period of absence upon which the employer can conclude that a frustration has occurred. If the employer provides long-term disability benefits, it is reasonably expected that a long-term absence can occur. Moreover, throughout the absence, the employer is obligated to reconsider accommodation, particularly if the expectation of return changes. For example, the employer will have to consider periodic or temporary return-to-work options, as well as waiting on medical information respecting future treatment and medical review. It is a case-by-case analysis, depending on the length of the continuous absence, efforts of accommodation and, most importantly, confirmation from the treating physician(s) of the employee’s inability to return to work for the foreseeable future, even with accommodation. Remember, if termination of frustration occurs due to illness or injury in Ontario, the employee remains entitled to payment of statutory notice and severance (if applicable) under the Employment Standards Act, 2000.

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