How do you handle an unresponsive employee on sick leave?

By Kathryn Benson, MIRHR
Sr. Human Resources Consultant, HR Options

Employees on sick/disability leave in Canada have protections under the law, such as the right to be free from being penalized for taking the leave, and the right to their job (or comparable job) upon return from leave. However, what happens if the employee has not been in contact with the employer throughout their leave? Does this lack of communication allow the employer to terminate the employee?

The answer is "no". The employer should make all reasonable efforts to reach out to the employee for an update and a doctor's note on when the employee is returning from leave. When requesting a doctor's "note", a good idea is to provide a job description so the doctor can comment on any accommodations he/she recommends upon the employee's return to work. Another recommendation is to provide specific questions for the doctor, instead of just receiving a generic note with vague information. The doctor may charge a fee to respond to the questions, and the employer should cover the fee - it's money well spent to get useful information.

If an employer is requesting this information but is still not hearing from the employee, employer due diligence should include reaching out to the employee in as many ways possible. For example, telephoning and emailing the employee to ask for an update on their status and for information from their doctor.

Keep in mind, however, that the employee also has a responsibility to communicate with the employer.

If the employer doesn't hear back from the employee via telephone or email with a response, then some practical advice is to mail a registered letter addressed to the employee "or a family member" indicating that if you don't hear back from the employee, or a family member on their behalf, by X date, their job is terminated effective X date due to "job abandonment". The time frame for a response must to be reasonable, so give at least 5 days in case the employee has a valid reason to be out of touch. 

Again, the employer must make efforts to reach out to the employee, but the employee has a responsibility to respond. If no response is received by the date indicated in the registered letter, you may be able to terminate for job abandonment (and issue the Record of Employment with this reason). However, it's always recommended that you verify before you terminate with an employment lawyer or a knowledgeable consultant before proceeding.

About HR Options:  HR Options is Total Human Resources Services provider, meaning we provide HR Consulting and Outsourced Employment services. Outsourced employment means that we take the burden of Canadian employment, payroll, Group benefits, Group RRSP, and human resources management of employees off your hands, so you can focus on your business.  The employee performs work for you and HR Options handles all aspects of employment from beginning to end. Please call us at 1-866-859-4157 toll free, or see our service options at www.hroptions.ca.