Employee on medical leave with no prospect of returning

How long does an employer have to keep an employee on the books if they're unlikely to ever come back?
By Stuart Rudner
|Canadian Employment Law Today|Last Updated: 09/10/2019

Question: If an employee has been off work for a while and provides medical information that is uncertain on whether the employee will be able to return, how long must an employer wait before terminating the employee?

Answer: You would be amazed how often this issue arises. We seem to have a lot of clients that have employees who have been “on leave” for years. In many cases, there has been no communication for an extended period and the documentation to support the ongoing absence is poor. Unfortunately, many employers are scared to ask for proper documentation due to a misguided fear that they will be breaching the employee’s privacy rights.

The reality is that a leave of absence is a form of accommodation. Any assessment of accommodation requirements should involve an ongoing dialogue between employer and employee. The starting point is that the employee must produce documentation clearly setting out any limitations on her ability to carry out her duties — whether the accommodation relates to disability, childcare obligations or anything else. Once that information is provided, the employer has a duty to assess the need for accommodation and, if there is one, assess the potential accommodations. The employee is not necessarily entitled to her preferred choice of accommodation; the duty is to provide reasonable accommodation to the point of undue hardship.