The dust has settled post-pandemic and employees are out of sorts. Turnover is high across all industries as people regroup and sort through what they want out of their career.
We regularly hear about employees resisting commuting, moving on quicker than ever when the job gets difficult, and when regular feedback gets uncomfortable.
The increased turnover continues to uncomfortably intersect with disability leaves. Few questions were asked during the pandemic, when covid had such a broad and serious impact on peoples' ability to come to work with as little as a cough. Now, as employers increasingly look to update sick leave policies, bring people back to work, and clean up inconsistent practices after a chaotic era, we are frequently facing complex disability and employment law hybrid issues.
Do employees have to return after a disability leave?
Most employers know an employee is legally entitled to return to a comparable role after a disability leave. But what if the employee doesn't want to return? What are the employment law implications? First, if an employee voluntarily resigns at any point during their leave, they are not entitled to any termination pay. The challenge is the resignation must be truly voluntary and free of any pressure or ambiguity.
Negotiating non-resignation exit terms
In some cases, the employee may prefer to come back, but the workplace is a trigger for their medical issue, which makes a resignation tainted with human rights complexity. This is particularly so in situations where the employee is on a stress leave due to a co-worker or workplace issue causing the stress. In these cases, the parties may each desire an amicable separation but no one knows where to start. The employer runs the risk of a discrimination claim if they raise the idea of a termination package with an employee on a disability leave, and the employee runs the risk of the discussion being seen as a resignation. It's the ultimate game of high-stakes chicken. When I represent an employer, more often than not they are relieved that the employee is raising the issue. Providing a termination package may be a much more elegant and preferred resolution than handling a complex mental health leave that likely intersects with harassment claims, friction in the workplace with an unpopular manager and/or overall performance issues. It's all super messy. When we represent the employee, we are very clear to not "resign", but rather, to raise the issue of a potential exit package by prefacing that the employee would prefer to return but as the employer is signalling that they may be looking for options, the employee is prepared to discuss. It's a very nuanced discussion and is extremely relationship and fact-specific. No two cases are the same.
Risky Business
Exiting employees on a disability leave is fraught with risk and should be approached with caution, compassion and expertise on human rights law. If the employee is not interested in a package and prefers to come back once they recover, forcing them out after a failed discussion will no doubt be seen as tainted by that disability, even they are offered a good termination package. This will give rise to human rights damages, in addition to termination pay.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
