On leave, I was told I can’t return to work. Is this legal?

THE QUESTION

I am off on medical leave with a torn rotator cuff. Had to wait months for an MRI and to see a specialist, then my employer called in the interim and told me I can't come back to work. To my knowledge, she has to welcome me back with the same rate of pay and the same amount of hours. Is that true?

THE FIRST ANSWER

Natalie C. MacDonald

Partner, Rudner MacDonald LLP, Toronto

It sounds as though you have been improperly treated. Human-rights legislation requires employers to accommodate employees, if required, and not to discriminate against or terminate an employee, while on medical leave, based on sickness or disability.

When an employee is on medical leave, and the employee is cleared or ready to return to work, the employer is obligated to accommodate the employee, if necessary, to the point of undue hardship.

In some instances, accommodation could mean modified duties, a graduated-return-to-work plan or a reconfigured workstation.

Accommodation is fact-specific.

An employer should return the employee to the same position he or she held before the leave, unless there is a legitimate business reason for not doing so that the employer can prove. An employer is also well advised not to reduce an employee's rate of pay or hours.

If you believe you have been terminated due to your injury, you can make a complaint to the Human Rights Tribunal (in Ontario) where, amongst other things, you can ask for lost wages, if any, and general damages for the injury to your dignity, feelings and self-respect. You can also request reinstatement to your position if you are in Ontario.

The alternate path is to start a lawsuit in the civil courts for damages for the wrongful dismissal itself, and claim, in addition, damages for breach of the Human Rights Code.

THE SECOND ANSWER

Zuleika Sgro

Director of people, Saje Natural Wellness, Vancouver

Medical leave and a return-to-work plan are always important to not only be documented, but also discussed as a partnership between your doctor, your employer and you.

It sounds like you need more facts as to why your employer gave that feedback. My advice is to reach out to your HR/benefits team and ask for more information around their call.

Request it in writing, then visit your doctor with that documentation for support in completing an instruction form for your employer – assuming you are cleared to return.

The form can likely be provided by your benefits carrier.

Then, your employer can review how they could accommodate your return to work. This could be gradual, with modified duties, or in a different capacity and they are required to do so to the point of undue hardship.

The plan to return and ensure your well-being and safety at work should be your mutual priority.

It is important to share your ideas along with your doctors documentation on how to make returning to work possible so you are safe and are part of the process and plan to return.