How to stay compliant as longer job-protected leaves roll out

Given recent changes in legislation in several provinces, employers and HR should be working through the implications of expanded long-term, job‑protected illness leaves that can run up to 27 weeks within a 52‑week period.

Both British Columbia and Alberta recently moved to a 27‑week, job‑protected illness or sick leave, following similar reforms already adopted in provinces such as Ontario and Saskatchewan.

The legislative changes follow earlier federal alterations, with Ottawa extending EI sickness benefits from 15 to 26 weeks and federally regulated, private sector employees having up to 27 weeks of unpaid medical leave and a separate entitlement to paid medical leave.

“A lot of provinces had much shorter or non-existent long-term leaves, illness leaves before that, and so a lot of that is new,” says Catherine Hamill, a partner at Osler in Calgary and Vancouver.

“A lot of workplace policies won't necessarily reflect that.”

That mismatch can leave employers exposed on everything from policy compliance and tracking to privacy and human rights, she says: “Employers should review any time-off policies they have to make sure that they align or that they work with the new rules.”

For multi‑jurisdictional employers, the considerations are even broader. Christopher McClelland, partner at Blaney McMurtry in Toronto points out that longer statutory sick leaves have been added at different times in different provinces, creating “a bit of a patchwork, as usual, in Canada,” with variation on issues such as eligibility thresholds and how the 27 weeks are measured.

Aligning policies with 27-week leaves

According to Hamill, these statutory leaves sit alongside — and can interact with — existing internal offerings such as sick days, short‑term disability and long‑term disability, as well as federal EI sickness benefits.

“One of the best practices is for employers to ensure that employees that are going on medical leave are aware of what benefits may be available to them either through the company or through the government and how to apply.”

As a leave progresses, employers should monitor when employees might become eligible for LTD, she says, and “make sure they’re aware and send them the documents and help them through the process to the extent they can.”

McClelland agrees, recommending that employers examine their existing policies about paid sick days, shortened disability benefits and long‑term disability benefits, “and see how those all align in order to ensure that the employee is receiving the proper benefits for the type of leave they’re on.”

Extended EI sickness benefits may intersect with other benefit programs, with paid sick leave and waiting periods in different ways, depending on the employer’s configuration, he notes.

Because long‑term sick leaves may evolve unpredictably — for example, a short absence that extends into months or alternates between time off and time back — McClelland recommends employers stay alert to the point at which a regular sick day situation triggers the statutory leave.

27-week rule varies by province

Even the basic architecture of the new statutory leaves is not uniform across the country. In some provinces, the entitlement is measured on a rolling 52‑week basis; in others, the relevant period may be a calendar year.

McClelland stresses that HR must check to see what is required specifically in each province, including how partial weeks are counted toward the 27‑week maximum and how eligibility thresholds (often 30 or 90 days of employment) are defined.

For that reason, he says, organizations operating in multiple provinces should not assume a single national policy is legally sufficient. Instead, they should confirm that leave policies, payroll and HRIS systems can track the exact entitlement structure.

“You have to have these rolling tracking of the time that’s taken, the time that’s left and when that time resets,” says McClelland.

Intermittent leaves and planning challenges

The new 27‑week entitlements can be taken in increments rather than one continuous block, which raises practical and legal complexities.

For one, intermittent leaves “make it difficult for employers in hiring replacements… it might be much more uncertain about how long they’re actually going to take,” says McClelland.

Hamill agrees that it can be challenging for employers when someone is going on a lot of shorter leaves. From an operational perspective, covering a single three‑month absence may be easier than managing repeated one‑ or two‑week absences punctuated by brief returns to work, for example.

As a result, she says, “employers should ensure that they’re tracking the leave and the medical notes, ensure that they’re keeping in contact with the employee to understand expectations about when they might come back or when they might have to go off.”

Intermittent leaves can also complicate accommodation planning, particularly when an employee’s capabilities fluctuate, so “it’s something that employers will have to cautiously navigate,” says Hamill, recommending legal advice.

New limits on medical notes

Any internal policies or procedures related to medical notes should also be reviewed, says Hamill. She notes there have been changes across jurisdictions for when employers can request medical certificates and for what purposes.

In B.C., for example, employers are not permitted to ask for a medical note for a leave that’s five days or less, and employees can take two of those leaves in a year, she says, meaning “an employee could take two short leaves of up to five days without providing any medical documentation.”

At the same time, B.C. – like most other provinces – still requires documentation for more serious or longer‑term leaves by employees, says Hamill.

“If the leave is a week or more, they have to go get a medical certificate; they have to give it to their employer. And then, once they do that, they will be entitled to the job-protected status of the leave, which will be up to 27 weeks in any 52-week period.”

A common mistake? Employers may tell an employee they need a note to support an accommodation request but fail to explain what functional information is needed. The result is often a vague note that won’t really give the employer the information that they need, she says: “So, being clear and knowing what they need and what they can ask for is important.”

Balancing medical info, privacy and human rights

Across jurisdictions, says McClelland, governments are moving towards prohibiting the requesting of notes for short-term notes, while “there’s a lot more latitude” to request these notes for extended leaves.

“There’s flexibility to adopt your own policies and forms to collect the information you’re entitled to to verify the employee’s entitlement to the leave.”

He cautions that employers must still keep in mind human rights accommodation restrictions on what they should and shouldn’t ask for in terms of things like diagnosis. Calling medical details “very sensitive information,” he also says this data should be stored separately from regular personnel files and accessed on a strict need‑to‑know basis.

At the outset of a long‑term medical leave, employers are only entitled to know that the person is needing to take time off for a medical reason “and then the anticipated return-to-work date or the anticipated length of the leave,” says Hamill.

More detailed information may be appropriate later, especially in the context of a return‑to‑work plan or accommodation request, but even then, there are privacy concerns and human rights considerations so “employers need to be cautious and ensure that they’re not asking for more details than they’re entitled to,” she says.

Hamill recommends careful control over who is included in conversations about an employee’s medical situation or leave status, keeping it limited “to those people that truly need to know and only sharing information that needs to be shared.”

Communication, training

Both lawyers highlight that missteps often arise from confusion about what information can be requested, when statutory leaves are triggered, or how far accommodation duties extend.

Regular but respectful check‑ins are another best practice. Hamill recommends touching base when an employee first goes off and again closer to the anticipated return date, while avoiding excessive contact.

“You don't want to be checking in too often and bothering them while they're off —especially depending on the type of leave. So, there's a balance.”

Employers, she says, are “definitely entitled” to check in on the person’s status, confirm that they are indeed able and planning to return on the expected date, and then to discuss the return and whether there’s any sort of accommodations that need to be considered.

McClelland agrees, adding that where documentation indicates an end date “a best practice would be to contact the employee before that date is up to confirm if plans have changed, if there needs to be new medical documentation.

“And, if not, if there’s kind of a plan for the return-to-work dates and process and everything. And actually asking about accommodation.”

When 27 weeks isn’t enough: post-leave options

A recurring question for employers is what to do when an employee reaches the end of the statutory 27‑week entitlement and still cannot return to work.

Hamill explains that once that threshold is reached, the job-protected aspect from employment standard legislation ends: “However, there’s still human rights duty to accommodate which might mean they’re continuing on their leave.”

That can also mean the employer is no longer legally required to hold the original job open indefinitely: “There may be more options for the employer at that point in terms of filling their role or covering for them while they're off,” she says.

Any decision, however, must be carefully vetted, she says.

“We also don’t want to do something that would impact their eligibility, for example, for LTD benefits.”

McClelland agrees that once an employee exceeds the statutory limit, “you enter a different regime where it’s no longer about the statutory leaves and the rules around those — the right to reinstatement, the right to continue benefits in some provinces — and you get into the human rights side of things where it’s really a duty to accommodate to the point of undue hardship.”

In some provinces, if the job still existed, the person would be entitled to go back to that job; if the job doesn't exist, then they have a right to be re-instated to a comparable job, he says, “so, you'd have to do that analysis when that person is planning to return.’

Accommodating return to work

Accommodation duties often come to the forefront as an employee prepares to return from a long medical absence. Employers have a duty to accommodate employees’ needs related to a physical or mental disability, typically to the point of undue hardship under human rights legislation, says Hamill.

In practice, that means “working with the employee to understand the type of accommodation that they actually need and then working together and considering whether that can be provided and what options are available.”

If necessary, it may mean obtaining additional information from health professionals about functional abilities or limitations, rather than diagnoses.

Gradual returns to work are now a common feature of that accommodation process, Hamill says, and could involve reduced hours, modified duties or a phased ramp‑up.

Given the open‑ended nature of human rights accommodation, it’s best practice to request updated medical documentation once the statutory leave has expired and the parties are navigating an extended, non‑statutory leave, says McClelland, and it’s common to have that documentation “updated regularly on a reasonable cadence every few months,” both to understand prognosis and to assess whether and when a return – perhaps with accommodation – is feasible.

Return-to-work planning

In many cases, gradual returns see employees slowly ramping up with the amount of time at work or duties. McClelland underscores the importance of documenting any return‑to‑work arrangements, particularly where they involve accommodation.

And if there is a gradual return, “ideally, that’s supported by the medical documentation — not the employer unilaterally imposing that,” he says, along with dialogue with the employee.

For workers in safety‑sensitive roles, McClelland notes, employers may also have a legitimate interest in verifying that an employee coming off a six‑month medical leave can safely perform their duties. In such cases, he says the employer might have a right to request fit‑to‑return, fitness‑to‑work documentation confirming that they’ve now recovered and can return to work safely.

Terminations after long-term leaves

Both lawyers say that termination decisions connected to long‑term medical leaves are risky events that attract close scrutiny in case law.

McClelland calls a termination or layoff during a long‑term sick leave a “high-risk kind of scenario,” comparable to ending employment while someone is on pregnancy or parental leave. While it is legally possible in some circumstances, he emphasizes that “there’ll be greater scrutiny of that termination — you’ll have to meet the statutory requirement to show that the termination was unrelated to the leave, which can be a high bar for the employer to have to clear.”

Hamill notes that, as a basic rule, “employees on a job-protected leave, such as a long-term illness leave, are entitled to return to their role or a comparable position usually.”

There are statutory exceptions where an employee’s position legitimately disappears – such as a division shutting down – but she warns that “employers should be cautious to double-check employment standards in their province” before acting.

McClelland also points out that employees may have access to Ministry of Labour complaint processes if they believe their leave status was a factor in the decision, so the employer would have to be able to justify its position in response to an investigation, making thorough documentation of business reasons critical – particularly in mass layoff or restructuring scenarios where employees on leave are included.

At the same time, he says, terminating “in the middle of the leave… might affect their ability to collect the EI benefits,” which should factor into the employer’s decision‑making on when and how to end employment.