Our law firm, Samfiru Tumakin LLP, has helped many Canadians who needed to step away from their job and take time to recuperate through a stress leave.
While each scenario might be different, what all these cases have in common is that we’ve found it’s crucial for employees to know their rights when dealing with unbearable stress and anxiety. Following certain steps and knowing your rights as an employee can make all the difference when it comes to dealing with workplace situations and getting compensation when it is owed.
Here are some of the most asked questions we receive about stress leave and employees’ rights in the workplace.
Do I have the right to take stress leave?
Employees have the right to take stress leave, also referred to as a medical leave of absence, if they are unable to work for health-related reasons. The reason for your absence must be supported by your doctor.
While some employers do not require a doctor’s note, my firm always recommends that you provide one to support your need for a leave of absence.
The note should reference your prognosis, or the likely outcome of your issues, rather than your diagnosis, which your employer does not have a right to know. Once you provide this documentation, you can take stress leave until your doctor clears you to return to work.
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Can my employer fill my job while I’m on stress leave?
Your employer has the right to replace you temporarily while you are on stress leave, but they must return you to the exact same position and conditions of employment when you return to work.
Can I be fired while on stress leave?
Stress leaves are protected by law. Employers do not have the right to fire you while you are on stress leave.
While the law is clear on this point, employers are sometimes unaware of the law or choose to ignore it and terminate an employee even though they are on a protected leave of absence. If your employment is ended during this period, you are owed appropriate compensation.
What kind of compensation do I get if I am fired on stress leave?
If you are fired while on stress leave, you are owed a full severance package, just as with any other dismissal without cause, which is a termination that doesn’t occur because you engaged in serious misconduct. The amount of severance will vary depending on your age, length of service and position. In some situations, you could be owed up to 24 months’ pay.
In addition to severance, you could also have a claim for human rights damages, which increases the amount of compensation you receive. This is because stress leave is a type of leave that is protected by human rights law in Canada.
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Employers have a legal obligation to accommodate your medical leave and allow you to return to your job when you are well enough to do so. It is also illegal for an employer to treat you differently or fire you because you took stress leave.
If you lose your job, you should always have your severance package reviewed by an employment lawyer, like the ones at Samfiru Tumarkin LLP, before signing it so that we can ensure that your rights have been respected — and that you get what you are owed.
Can my employer make changes to my employment when I return from stress leave?
Your employer doesn’t have the right to make significant changes to the core aspects of your job, such as your pay, position and duties, without your consent. This is true both when you return from stress leave and at any time during your employment relationship.
If your employer imposes changes on you when you come back, you may have the option to reject the change and treat it to as a termination, or constructive dismissal. In that case, you could pursue a claim for severance pay through an employment lawyer.
It is illegal for an employer to treat you in a negative or retaliatory way because you took a medical leave of absence. This includes imposing changes like cutting your pay, demoting you or removing some of your duties. If your stress leave has factored into the decision to make changes at all, the employer has engaged in discrimination.
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What if I have restrictions when I return to work?
A company must provide accommodation to employees who have medical conditions that impact their ability to carry out their regular duties or fulfil their regular work hours. Examples of common accommodations are modified duties, modified hours of work or remote work.
When you are cleared to return to work after a stress leave, you must provide a note from your doctor that outlines your limitations. It should also state that these limitations are caused by a medical condition. If you do this, you will trigger your employer’s legal obligation to make modifications to your role — even if those changes are inconvenient for them or add additional expense.
Have you been fired while on stress leave? Is your employer refusing to make your job easier given your medical issues?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia. Get the advice you need — and the compensation you deserve.
Samara Belitzky is an employment lawyer and senior associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.