Consider the following scenario:
You are the principal dentist and employer of several employees. Your long-time dental assistant has taken extended leave due to a medical condition. It has been several months since you heard from her and though you have hired a temporary employee in her place, you are starting to get on edge because you have no idea if the employee is coming back, or when.
Though you are concerned for your assistant’s well-being, you also want to know where to draw the line and how much time off she can take before you can fire her and hire a full time assistant to take over her duties.
Here is your starting point:
Employers have a legal obligation to accommodate employees on medical leave [Human Rights Code, RSO 1990, c H.19]. Failing to accommodate employees who are on medical leave may amount to “discrimination” and land you in hot water. So, when an employee takes a leave of absence due to medical reasons, there is generally no time limit on how long they can be away from work before returning, with two distinct exceptions: if accommodating the employee’s absence becomes an “undue hardship” on the employer or if the contract of employment can no longer be performed by the employee resulting in “frustration of contract”.
Undue hardship arises when the accommodation causes a very significant workplace disruption. The mere absence of an employee who can be replaced through a temporary placement is not an undue hardship even though the temporary placement does cause some inconvenience. For example, in a recent Human Rights Tribunal of Ontario case, Hébert v.1497422 Ontario Inc., 2013 HRTO 133, a janitorial employee who took 3 months of stress leave and was fired while on leave because the employer didn’t think he could replace the employee for such a short period of time, was found to be in breach of the Human Rights Code for not having accommodated the employee. The employee was ultimately awarded $12,000.00 by the Tribunal.
Like the employer in the above case, you feel inconvenienced. But, unless you can show that you have been significantly put out by having to accommodate the assistant’s medical leave (for example, you cannot find a replacement on a temporary basis despite many efforts to do so), it is not likely that your position of having to hire a temporary assistant for a few months will be seen as “undue hardship”… so let’s explore the other exception.
Frustration of Contract
Frustration arises when it is clear that a party to an employment relationship can no longer perform her obligations, or will not be able to perform her obligations in the foreseeable future. A court or tribunal usually allows an employee significant leeway before concluding that frustration has occurred.
Where an employee becomes permanently (as opposed to temporarily) unable to work due to injury or illness, the employment may be terminated on the premise that the incapacity has thwarted the underlying object of the contract. Whether the injury or illness will result in frustration of the contract of employment depends on the unique facts of each case, which the employer has the onus of proving if it seeks to rely on the doctrine [Ford v. King’s Transfer Van Lines Inc., 2013 CanLII 68183]. The onus on the employer is very high. For example in the case of Altman v. Steve’s Music Store Inc.,  O.J. No. 1136, the employee was diagnosed with a form of terminal cancer and the employer was ultimately found to have wrongfully terminated her employment because, among other reasons, the employment contract between the parties had not shown to be frustrated (she was still able to work on modified terms).
Given your assistant’s relatively short period of absence and lack of evidence as to the permanency of her medical condition, you are likely not in good legal standing to assert that the employment relationship has been frustrated.
So, it doesn’t seem that either of the exceptions apply to your situation at this time.
What are your options?
One option you have is to seek confirmation of illness and medical proof to clarify the medical restrictions and get a sense of how long the assistant will be off (as well as whether either of the exceptions stated above will apply to you now or in the future). You can start by sending the assistant a letter simply asking that her physician complete a form regarding the assistant’s medical condition and, depending on the condition and prognosis, you may require completion of the form every two to three months to keep updated on the employee’s condition and the likelihood of her return to work. The periodic updates may also serve as good evidence down the line for proving either undue hardship or frustration of contract, if necessary.
In the meantime, while the assistant is away sick, you can make sure to limit your liability towards the temporary staff. You can do this by presenting the temporary assistant with a “fixed-term contract”. The fixed term contract should have a specified end date that could be extended if the dental assistant doesn’t return to work by then. On the specified date, the contract would come to an end without a requirement to pay termination pay under the Employment Standards Act, 2000 or common law.
If you need more information on your obligations as an employer or would like a fixed-term contract drafted for you temporary employees, please feel free to contact us.