Employee illness during probationary period

Can probationary period be extended?
By Tim Mitchell
|Canadian Employment Law Today|Last Updated: 01/08/2014

Question: If a new employee becomes ill during a probationary period before the employee is eligible for sick leave or vacation, can the employer place her on unpaid leave? If the illness continues until the end of the probationary period, can the employer extend the probationary period (and the ineligibility for benefits) so it can properly evaluate the employee once she returns?

Answer: If an employee is too ill to work and does not meet the employer’s eligibility for short-term disability (STD) benefits, an unpaid leave of absence is usually a reasonable form of accommodation. So long as the employee receives no adverse treatment in terms and conditions of employment that imply discrimination on the basis of the illness, placing the employee on unpaid leave while the employee recovers is legitimate from a management perspective.

In addition to complying with human rights requirements, the employer must also take care to ensure its measures comply with governing employment standards legislation in its jurisdiction. While the Alberta Employment Standards Code does not speak to sick days specifically, other jurisdictions have rules that may impact the situation.

Federally, for example, the Canada Labour Code contains provisions requiring an employer to continue employment benefits during periods of sick leave in certain circumstances. The rules governing the employer’s group health plan will speak to eligibility as well.

As for extending the probationary period, this will, in many cases, violate employment standards legislation. In Alberta, the province’s Employment Standards Code provides for a three-month statutory probationary period, as do many other employment standards statutes. During this three-month period — or whatever the indicated length of the probationary period — a dismissed employee is not entitled to termination pay on dismissal. If the employment contract or offer letter stipulates likewise, the employee will not be entitled to common law reasonable notice, either.

Extending the probationary period is problematic since employment is continuous while an employee is off sick, whether on paid or unpaid leave. Dismissal beyond the statutory probationary period without notice or pay in lieu of notice will violate the employee’s employment standards entitlement to termination notice or pay in lieu thereof.

Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@nortonrosefulbright.com.