Fired After Returning From Sick Leave? Alberta Q&A

Getting Fired From Employment After Returning From Sick Leave

Employment law in Alberta allows employers to terminate non-unionized employees for any reason, provided that they follow certain rules when doing so.

If you’ve been fired after returning from sick leave, your legal position depends more on how and why your employer terminated you rather than the fact that it happened.

Under Alberta’s Employment Standards Code, if you receive reasonable notice or severance pay in lieu of notice after you return from leave — and you’re not dismissed for discriminatory reasons — you can be fired lawfully under the termination without cause rules.

However, this is often not the case, and it may be worth discussing your legal rights with an employment lawyer if you are in any doubt about your situation.

Can you be fired while on sick leave in Alberta?

If you’re a non-unionized employee on sick leave, your employer cannot fire you because you’re on leave — even if severance pay is provided.

As long as you’ve been employed for at least 90 days, the Employment Standards Code allows for 16 weeks of job-protected leave per calendar year for illness or injury (or quarantine).

Technically, then, you could begin sick leave in October and if you still require sick leave due to illness or injury at the start of the new year, you would be entitled to a further 16 weeks for the new year. This would take you through to April, and your employer would not have the right to fire you during this period. Some employers in Alberta, however, are unaware of the rules and make mistakes.

This may be lawful if you are terminated while on leave for a reason unrelated to your sick leave. For instance, if your employer can demonstrate a plan to downsize the business, your termination may be part of that plan.

If you are terminated after you return to work, you can be terminated immediately and lawfully with the applicable severance package.

However, again, you may want to may seek clarification about whether the reason for your termination was related to the fact that you were on sick leave or why you were on sick leave. Employees in Alberta have protected rights, and freedom from discrimination in the workplace is one of these rights.

What if your termination is due to discrimination?

If your termination was due to discrimination against you based on a protected right or related to the fact that you were on sick leave or why you took sick leave, you may be able to file a human rights complaint and seek compensation.

Employees in Alberta are protected against this and may take up their complaints directly with the Human Rights Commission or through a qualified employment lawyer.

What if you’re punished by your employer for taking sick leave?

Because you’re entitled to take sick leave of up to 16 weeks per calendar year after being employed for 90 days, your employer cannot punish you for considering or taking sick leave.

This would be considered retaliation and a violation of your rights under the Human Rights Code, which says that employers must not discriminate against an employee due to a disability.

What if your employer makes changes to your job after you return from sick leave?

Alberta’s constructive dismissal laws mean that an employer cannot make substantial changes to your job without your consent.

When you return from sick leave, you must be either reinstated to the same position or provided with comparable employment (at the same pay rate and with the same benefits). You cannot lawfully be demoted, have your pay/commission cut or have your hours reduced, for instance.

If your employer makes substantial and unilateral changes without your consent, it could be argued that you were left with no other reasonable choice but to quit. This could form the basis of a constructive dismissal claim where you seek a full severance package.

What if you have a medical condition even after you return to work?

If you return from sick leave with an ongoing medical condition that requires job modifications or a gradual return to work, your Alberta employer must take reasonable steps to accommodate your needs.

This could mean changing the requirements of your job, modifying hours, or providing assistance to help you complete tasks.

Can you be fired for travelling while on sick leave?

If you travel while on sick leave, it may raise a few eyebrows, and you may be accused of “misconduct”, but that does not mean that your employer has the automatic right to terminate you with just cause.

In related legal cases in Alberta, the intention of both the employer and employee has been an important element of the judge’s ruling.

The employer must consider the length of employment, general performance and disciplinary history of the employee before deciding on termination.

An employee on sick leave does not have to stay at home. It’s also possible to be unable to work but fit for travel (with certain injuries, for instance) or have a pressing need to visit family or friends.

If you’re considering travelling while on sick leave, it’s generally best to seek clearance to travel to avoid problems or claims of fraudulent intent with sick leave.

For employers, it’s best to set clear policies and procedures for sick leave and to ensure that they are successfully communicated to employees so that confusion and misunderstandings can be avoided.

If you have any questions about your legal rights as an employee, an employment lawyer from Taylor Janis LLP in Alberta can advise you during a confidential telephone or video consultation.

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