One of the hardest legal problems employers can face is terminating an employee who is on sick leave or maternity leave. In some circumstances an employer may justifiably terminate an employee while they are on sick leave. There are a myriad of different outcomes and considerations, all highly dependent on the circumstances. Employers in this situation are wise to get some legal advice. However, the following principals are vital to consider if you are facing terminating an employee before, during or after a maternity, parental or medical leave.
1) Your Reasons Matter
The BC Human Rights Code prohibits discriminating against an employee on the basis of sex (which includes pregnancy) or disability. Human Rights laws are separate and distinct from the law of wrongful dismissal. Normally, an employer can terminate an employee at will, for no reason, as long as the employer treats them fairly in the manner of dismissal and gives them reasonable notice of the termination or pay in lieu of notice. Just because someone is pregnant or disabled, does not give them immunity from this principle. However, if the reason the employee is being terminated is the medical issue or the pregnancy itself, termination without cause will likely be discriminatory for purposes of the Human Rights Code.
2) BC Employment Standards Act – Maternity and Parental Leave
It is important to follow the provisions of the BC Employment Standards Act when a worker requests maternity or paternity leave. Employment standards legislation in British Columbia creates an exception to the normal termination rules. Employers cannot terminate an employee because they ask for maternity or parental leave. Employees are entitled to 17 consecutive weeks of maternity leave, beginning 11 weeks before the birth, up to the time of the birth. Parental leave lasts another 35 weeks and can be taken by fathers and adoptive parents, with some restrictions. The leave is unpaid.
3) Change is Bad
Employees on maternity or parental leave are entitled to have their position kept, and to be restored to the same working terms, benefits, pay, position and duties. Annual vacation pay and vacation entitlement should be calculated as if there was no leave. The Act specifically prohibits changing the conditions of employment, without written consent, or moving the employee to a position that is not comparable. Keeping all conditions the same after a lengthy leave can be extremely difficult in dynamic environments, but care should be taken to ensure that this requirement is not violated. Substantial changes in the terms of employment may also violate the Human Rights Code, and would give an employee the right to claim they were constructively dismissed, and claim severance.
4) Sick is not always a Disability
If someone is continually sick, and it impacts their employment, that is not protected by the Human Rights Code. However, terminating someone on such a technicality may be risky, since repeated illnesses may be the result of some underlying clinical problem. Of course, this does not relieve employers from their common law responsibility to give reasonable notice of termination. If you are an employee who is continually sick because of some underlying chronic illness, it is important for you to notify your employer, so that you are protected. Also, most employers truly want to be compassionate to their employees, and putting this information in their hands allows (and requires) your employer to accommodate you. Often the difficulty is that an employee unreasonably refuses to return to work from a leave, and the employer is not convinced the employee is truly disabled. This can be cause for termination in some instances. However, medical evidence, and lots of clear written correspondence will be necessary to justify a termination on this basis.
5) Timing is everything
Notice given to an employee while they are on leave is generally deemed ineffective until the leave is over. The notice or severance pay period does not start until the employee returns. Even if an employer downsizes and a number of employees are terminated at the same time, the notice will not run against the employee on leave until they return. If you have employees on leave, you should wait until they return before finally determining your staffing requirements and making final HR decisions.
6) Discrimination can be OK. . . Rarely
In some cases, employers may be able to terminate a disabled employee, where the disability prevents the employee from performing a bona fide occupational requirement (an absolute must of the job) and the employer has taken all steps to accommodate the individual. This is not for the faint of heart, nor to be done without consultation with a lawyer and careful consideration and documentation of all possible accommodations.
(Photo copyright Mahalie – http://www.flickr.com/photos/mahalie/ )