What is a reasonable amount of communication to require of an employee on paid or unpaid leave? Would it be different if there is a specific return-to-work date compared to an open-ended leave?
Question: What is a reasonable amount of communication to require of an employee on paid or unpaid leave? Would it be different if there is a specific return-to-work date compared to an open-ended leave?
Answer: The answer to this question will depend significantly upon the nature of the leave in question. For example, If the employer has agreed to a six-month unpaid leave with a fixed return date, then there would be no reason to expect regular communication. If the employee is on parental leave, then there is no obligation for the employee to remain in regular communication, other than to confirm the return date if it will be different than the default pursuant to legislation.
Conversely, if the employee is on medical leave without a scheduled return date, then it is incumbent upon the employee to remain in regular communication with the employer and update it on her condition. Many employers fail to follow up and ensure this occurs. I work with employers to establish a communication process or protocol and make sure the employee is aware she is required to provide regular updates with respect to her condition and, in particular, the limitations upon her ability to carry out her job-related duties.
A medical leave of that nature is an accommodation, and accommodation is a two-way street. The employer is required to accommodate, but the employee is required to provide sufficient information in order to allow the employer to understand the situation that must be accommodated. As part of my work with employers, we make it clear to the employee on leave that our commitment is to assisting in a safe but speedy return to work, and we require as much information as possible in order to understand the types of accommodations that are feasible. An employee is not simply entitled to remain at home; other forms of accommodation should be considered.
Sometimes, employees seem to “disappear” while on leave and ignore all attempts to communicate with them. That is a breach of their obligation, and ultimately can lead to a determination that they are absent without authorization. That being said, the employer should never be seen as harassing the employee with unnecessarily frequent demands for information.
Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at [email protected].
