Sick and fired? The duty to accommodate explained.

At Forte Law, one of the most common work problems that brings clients to see us is disability in the workplace.  We meet with employer clients who are struggling with how to manage employee medical issues that are impacting the workplace.  We  also meet with employee clients who have been fired from their jobs after getting sick.  Sometimes an employee has been fired during, or following a medical leave or when they request changes to their duties or schedule to accommodate medical limitations. Every week, we work with several clients who are facing this stressful situation.

The good news is that the law is clear.  Employers in British Columbia have a duty to accommodate employees’ physical or mental disabilities.  This means that if an employee has a disabling condition, the employer must consider what can be done to maintain the employment relationship before firing them.  In most employment relationships, the duty to accommodate could include allowing employees to take leaves from work for treatment and recovery, or considering modifications to duties or work schedules.

There are limits to what lengths employers must go to in accommodation.  If an employer can demonstrate that the changes required would be undue hardship for its business, for reasons that can include financial costs, or other business impacts then it has reached the end of the duty to accommodate.  Employers are not required to hold positions open forever when an employee is on leave, but decisions to terminate must be based on a careful assessment.

The duty to accommodate is a two way street.  Employees are also required to participate in the accommodation process.  Employees must provide medical information, maintain contact while away from the workplace, and be open and flexible about ideas on how their medical limitations could be accommodated at work.

The bottom line is, if you have been fired or “laid off” in any part because of a medical leave or limitations on your ability to work, you should seek advice from an employment lawyer.  This is a stressful time, and we can help you find a path forward.  We will make sure you understand your rights, and in most cases we are able to help our clients negotiate a settlement that lets them move on with their lives.

Similarly, if you are an employer, and thinking about letting someone go while they are on a medical leave, you should definitely seek guidance from an employment lawyer.  We can ensure that you understand your obligations and risks, so that you can move forward in a manner consistent with the Human Rights Code.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact me [email protected].

 

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