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EMPLOYMENT LAW
Apr 12, 2010

Injured employees: How long should they get to come back to work?

    

By Jeffrey R. Smith

Suffering a serious injury is never a good situation, especially if it affects a person’s ability to do the job. When the injury can be rehabilitated, the employer is obligated to give the employee a chance to get well without losing her job. This can involve a medical leave, perhaps with a gradual return-to-work program with lighter duties that lead up to full duties, or sometimes the employee is accommodated with permanent lighter duties. However, it can become a tough situation if the injury doesn’t seem to be healing and the employer can’t afford to accommodate the employee with a leave or lesser duties forever.

Legally, employers are required to accommodate employees with injuries or disabilities to the point of undue hardship. It’s also usually the decent thing to do — it wouldn’t be fair for someone to lose her livelihood because she got hurt, especially if the injury could heal in the future and the employee would be able to do her job again.

Generally, when an employee has to take time off due to an injury, she’s required to provide regular updates on her medical status from doctors. These allow the employer to get an idea of when the employee will return to work and if any special accommodation is needed, which is important to running the business. But if there’s no timetable for recovery, how long should the employer be expected to wait? This can become a difficult situation that boils down to the employee’s right to preserving her livelihood versus the employer’s right to operate its business to its full capacity.

A small-town Manitoba police officer had shoulder problems a few years ago that impeded his ability to do his job, which required significant physical exertion at times. The condition was identified as degenerative, but he had surgery and said he hoped for improvement. The town gave him time to rehabilitate his shoulder but, after a year, there was little improvement and no estimation of his return. Though the officer wanted to go back to work and said his shoulder might still improve, the town was stuck — it had a small police force and needed someone who could do the job right away. It finally decided it had to hire someone new and terminated the injured officer.

In this case, the town needed someone who could do the job right away and there was no indication the injured officer would ever be able to come back. As a result, the employment contract was frustrated because the officer was unable to fulfill his job requirements. However, the situation may have been different if it was a larger police department — perhaps it would have been able to afford to keep the officer on the payroll a little longer. Frustration of contract and undue hardship is a moving target and never the same. But how much weight should be given to the employee and employer rights?

If an employee has a timetable for recovery, the employer would naturally be expected to hold her job, unless the timetable was ridiculously long. But what if there is no timetable, such as in the Manitoba police officer’s case? If a doctor can’t predict when or if an employee will get better, should the employer be able to terminate right away? Is it unfair to ask it to carry the employee’s salary for a while — more than a year in the above case — when the contract will probably be frustrated anyway?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

    
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