When a Party to a Workplace Investigation Goes on Medical Leave: What Employers Need to Know
It’s a tale most HR professionals and workplace investigators know all too well. A conflict arises, tensions escalate, and just as an investigation begins—or sometimes after it’s already underway—one of the parties goes off on medical leave. Sometimes the complainant files a bullying and harassment complaint and immediately goes on leave. Other times, a respondent learns a complaint has been filed against them and goes on leave shortly after. In many cases, WorkSafeBC claims are filed at the same time, adding yet another layer of complexity.
These situations can feel like a procedural minefield. Employers want to move forward, but they also need to respect medical limitations, statutory obligations, and procedural fairness. So, what should an employer do, and what pitfalls should they avoid?
🌿 1. Human Rights Considerations
Under the BC Human Rights Code, employers must not discriminate against employees on the basis of a protected ground—including physical or mental disability. This obligation includes a duty to accommodate a medical leave connected with a disability to the point of undue hardship.
What this means in an investigation context:
If the complainant goes on medical leave
- The employer should ask whether the complainant wishes the investigation to proceed while they are on leave.
- If the complainant prefers not to participate while on leave, the employer should pause the investigation until they return.
- If the complainant prefers to participate while on leave, it is important to take a flexible approach to how they participate to meet any restrictions or limitations (for example, virtual meetings or calls instead of coming to the office, or a few shorter meetings rather than one long one).
If the respondent goes on medical leave
- Respondents are entitled to procedural fairness, regardless of disability. As a result, a respondent should always be offered the opportunity to participate in an investigation.
- Employers may request that the respondent participate in an investigation while on leave. However, if the respondent is medically unfit to participate, the employer should pause the investigation until the respondent is medically cleared to participate.
- If the respondent prefers to participate while on leave, it is important to take a flexible approach to how they participate to meet any restrictions or limitations (for example, virtual meetings or calls instead of coming to the office, or a few shorter meetings rather than one long one).
🌿 2. Employment Standards Obligations
Under the BC Employment Standards Act, employees are entitled to up to 27 weeks of unpaid leave for serious illness or injury. This protection includes:
- Their employment cannot be terminated or altered because of the leave.
- They must be returned to their previous or a comparable position after the leave.
How does this interact with investigations? If an investigation results in termination or discipline of an employee on a protected leave, the employer must be able to show that the leave itself played no role in the decision.
As a result, best practice is to wait to conclude the investigation—and certainly to impose discipline—until the party has returned to work.
🌿 3. WorkSafeBC Considerations
Employees may file a WorkSafeBC claim for any work‑related injury, including mental injuries. As a result, a WorkSafeBC claims process may run parallel to an employer’s internal workplace investigation.
If a claim is accepted, employers have duties:
- To cooperate in the return‑to‑work process, which may include providing modified duties or hours.
- In some cases, to maintain the employee’s employment. If an injured worker is terminated within 6 months of returning to work, the employer is presumed to have failed in their duty to maintain employment unless they can establish that the termination wasn’t related to the injury.
How does this interact with investigations? If an investigation results in the termination of a party that had been on a protected WorkSafeBC leave, the employer must be able to show that the injury played no role in the decision.
To demonstrate this, the employer should ensure that they provided a fair and neutral investigation resulting in clear findings of fact and law/policy breaches that led to the decision to terminate, which had nothing to do with the injury or medical leave.
A Note on Unionized Workplaces
Collective agreements can significantly shape investigation timelines, participation expectations, return‑to‑work processes, and discipline procedures. Employers must ensure they follow the specific terms of any applicable collective agreement.
Key Takeaways for Employers
- Have a bullying and harassment policy and follow it—WorkSafeBC requires it.
- At all times, provide a fair and neutral investigation that results in clear findings.
- If a party is on medical leave during an investigation, clarify:
- For complainants: whether they want the investigation to proceed and/or are medically fit to participate.
- For respondents: whether they are medically fit to participate.
- Pause the investigation if a key party is medically unfit to participate.
- Avoid disciplining a party who is on leave and wait to address the matter until they are cleared to return to work.
We’re Here to Help
Whether you are needing to hire a workplace investigator, an employer navigating your obligations, or an employee seeking support, our team is always happy to provide advice, practical guidance, and representation at any stage of the process.
This blog is not legal advice and only provides general information. Every situation must be considered on its own facts.
Our team of employment lawyers, workplace investigators, and mediators in BC are ready to answer your questions. Contact us [email protected] or
604-535-7063.
