An employee leaves work in tears. A doctor’s note follows, stating the employee will be absent two weeks for medical reasons. Two weeks becomes a month, a month becomes two, and a year later the employee is still on leave.

The employer now faces a situation that began as a short-term medical leave, and has become a protracted employee absence fraught with legal liability.

Employees on extended leaves present legally complicated situations, and employers should consider the following approaches to disability management.

Obtain Information and Assess Fitness for Work

An important step in disability management is to understand the employee’s abilities and restrictions as a result of the illness, and understand whether the employee requires any accommodations to return to work.

Employers don’t need the employee’s specific diagnosis. However, it is important to understand if the employee’s illness is temporary or permanent, how the illness affects the employee’s ability to do the job and whether the illness presents any safety concerns.

An employer’s right to an employee’s medical information is a balance of the employee’s privacy rights and the employer’s right to manage its workplace. Employers can request employees on medical leave provide information relating to their abilities and restrictions, the anticipated length of the disability and what accommodations the employee may require to return to work.

Explore Accommodation

Under human rights legislation, an employer is required to accommodate an employee’s disability to the point of undue hardship. Unless medical and other evidence indicates the employee cannot return to work for the foreseeable future, the employer should look to develop an accommodation plan for an employee on medical leave.

If the employee on leave can return to work with some accommodation, the employer, employee and medical professionals should work together to design a return to work plan that meets the needs of all parties.

It may be that medical and other evidence indicates that the employee is not able to work for the foreseeable future, either in the pre-leave position or an accommodated role. In this scenario, the employer may begin to consider ending the employment relationship on the basis of non-culpable absenteeism or frustration of contract.

Warn of Pending Decision

Ending the employment of an employee on medical leave has profound effects on that individual. Employers should ensure they have the best available information before making this difficult decision.

An employer considering a frustration of contract or a non-culpable absenteeism dismissal should provide the employee with a warning of the pending decision, and an opportunity to provide further relevant medical information prior to the end of employment.

The employee may have relevant medical information that has not been provided to the employer, and a warning can revive dialogue between the employee, employer and their medical professionals to determine whether the employee is able to return to work.

If there is no new information and medical evidence suggests the employee is not able to return to work, a warning gives employees an opportunity to preserve their dignity and be heard in relation to the important decision of their continued employment, and potentially an opportunity to prepare for an ultimate termination.

Employers should obtain information to assess the fitness for work of employees on medical leave, develop an accommodation plan wherever possible and consider ending employment only after all the evidence suggests the employee is not likely to return to work in the foreseeable future.