Employers across Canada often must manage employees who take extended medical leaves. Unlike other forms of leave, medical absences may not have a specific end date, and this issue can be challenging for employers. They may wonder when these employees will return or if they will return at all.
Recent Court Case
The medical leave topic was addressed earlier this year in the Ontario case Hettrick v Triple F Paving (2021 ONSC 208). The plaintiff was a 73-year-old employee who had worked for the company for more than 20 years and took extended medical leave. When she left, she indicated that she wanted to return to her job. The company asked for a medical note, which she obtained. However, she never provided it. After a two-year absence, she contacted the company to return and was told she had abandoned her position and there was no vacancy for her.
In court, Triple F Paving claimed that it had stated the medical note requirement, but the court ruled that the company did not specifically indicate that without such a note, her position would be terminated. In a communication dated October 15, 2015, the company asserted that if it did not receive the medical certificate by October 31, 2015, it would contact the Canada Revenue Agency and advise that the record of employment would be “cancelled for lack of verification.” Triple F Paving claimed it made numerous attempts to contact Ms. Hettrick for updates, but there was no evidence to support that. There was no documentation that the employer tried to obtain the medical certification, asked about the medical leave status, or inquired if Ms. Hettrick intended to return to work. Never did Triple F Paving advise her that she had abandoned her job or warn her that her position would be considered abandoned if she did not respond.
Interestingly, Ms. Hettrick did not dispute that she did not make an effort to deliver the medical certificate or ask her doctor to do so. And even though she did not communicate with her employer during her two-year absence, she had indicated a desire to return when she initially went on leave, so the court believed there no reason to think that intent had changed.
Ruling for the Plaintiff
A previous case, Lemesani v. Lowerys Inc. (2017 ONSC 1808), supported the standard that an employer must show that an employee’s conduct or words clearly signalled an intention to abandon employment. And Sutherland v. Messengers International (2018 ONSC 2703) indicated that if there is any confusion regarding an employee’s possible job abandonment, the employer is responsible for clarifying the issue with the employee.
In this case, the court determined that Ms. Hettrick never resigned from or abandoned her position. Instead, the onus was on Triple F Paving to follow up with her, clarify any confusion, and ask for an expected return date.
Given the plaintiff’s age, the judge found reasonable notice of 18 months and determined she had no duty to mitigate her damages.
Advice for Employers
Even though navigating medical leave issues has always been complex, this court ruling set a high bar for employers in Canada. Many employers would assume job abandonment after a two-year absence. But based on this ruling, it is clear that employers should not wait to hear from employees during medical leave. Instead, they should initiate communication and require updates from their employees. This consistent communication helps the employer assess the employee’s well-being and better determine how to accommodate an employee’s return.
Further, if an employee fails to respond to these direct questions, the employer must provide unequivocal warnings to the employee about subsequent action. Such action could include setting deadlines by which an employee is considered to have abandoned a position. If Triple F Paving had been more pointed in communicating with Ms. Hettrick, there would have been no confusion, and the case would have likely not gone to court or would have seen a different outcome.