An employee recently wrote to the Employment Law Show after being fired while on mental health leave.
Because of the worker’s specialized technical role, the company was unhappy with their absence, but ultimately permitted the leave. Supported by a doctor’s note, the employee was away for six months.
Then came the termination notice: after five years with the company, they were being let go with eight weeks of severance.
They wanted to know whether their employer could do this, and whether eight weeks sufficed.
My answer? There are two major problems here. The termination itself is potentially unlawful, and the severance offer may be nowhere near enough.
Can you be fired while on mental health leave?
In Ontario, mental health disabilities are protected under the Human Rights Code.
An employer can’t simply fire someone because they need time away from work for a mental health condition.
On the contrary, employers have a duty to accommodate employees with disabilities to the point of undue hardship. That can include allowing medically supported leave and assessing what accommodations the employee needs when they are ready to return.
Here, the supervisor was frustrated because the employee held a specialized role. I understand that a lengthy absence can create staffing challenges. But inconvenience is not, by itself, a legal justification for dismissal.
If the company needs someone to do the work, it can bring in a temporary replacement or make other arrangements. It should not automatically treat the absent employee as someone whose job can simply be taken away.
There are exceptions. A genuine restructuring or elimination of a position, unrelated to the medical leave, can sometimes justify a termination. An employer may also face situations where accommodation would cause true undue hardship.
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But it must assess the actual circumstances rather than assume that a six-month absence means the employee will never return. If the leave was a factor in the medical leave dismissal, the employee could have a human rights claim, which can mean extra compensation on top of severance.
READ MORE: Fired after returning from stress leave? 4 things employees in Ontario must do
Your supervisor does not “permit” a medically necessary leave
Something else jumped out at me in this question. The employee said their supervisor “permitted” the leave after receiving a doctor’s note.
Permitted it? As though the supervisor was doing the employee a favour?
A legitimate medical leave is not a personal favour granted by your boss. If a doctor determines you can’t work for medical reasons, your employer must meet its legal obligations.
That does not mean an employee can disappear without providing information. Employers can generally request reasonable medical documentation, including information about restrictions, expected duration and the ability to return to work. They do not automatically get access to a diagnosis or an entire medical file.
If a doctor says you need more time off, the employer must consider that medical evidence and its accommodation duties. It can’t simply say no because your absence inconveniences them.
If your employer pressures you to return before you are medically ready, threatens your job or punishes you for needing leave, speak with an employment lawyer. Those actions violate your rights.
READ MORE: Fired because of your disability? 3 things employees in Ontario must do
Is eight weeks of severance enough after five years?
Now consider the severance offer. This employee spent five years in a specialized technical job and was offered eight weeks of pay.
Many people assume severance is one or two weeks per year of service. In Ontario, full severance pay can be as much as 24 months’ pay. It depends on age, length of service, position and the availability of comparable work.
In a case involving five years of service and a specialized technical role, a severance package of around eight months is far more appropriate than eight weeks.
Use the free Severance Pay Calculator through the Pocket Employment Lawyer for an initial estimate. It can help you understand why an employer’s first offer should not automatically be accepted.
READ MORE: Employer demoted him after disability leave; Ontario court says he was owed 22 months of severance
What should you do if you are fired on medical leave?
First, keep your termination letter, severance offer, medical notes and any messages about your leave. The timing of the dismissal and what your employer said can matter.
Second, don’t sign a release simply because the employer has given you a deadline. Signing eliminates your ability to get additional severance or other compensation.
Third, have an employment lawyer at my firm review both the reason for the termination and the amount offered. A firing connected to a disability can raise issues beyond ordinary wrongful dismissal.
In this situation, I would want to examine why the employee was let go during an ongoing medical leave, what the company knew about their return and exactly how much compensation they should receive.
If you have been fired while on mental health leave, contact me and my team at Samfiru Tumarkin LLP. We can review what happened, assess your severance and determine whether your employer violated your rights.
Do not let your employer decide, on its own, what your health and five years of service are worth.
