Returning to Work From a Protected Leave: When Employers and Employees Disagree

Returning to work after a protected leave of absence can be a critical and delicate process for employers and employees, especially if disagreements arise. This article outlines an employer’s legal duties and obligations regarding accommodation and explores the options available when an employee disagrees with the position offered upon their return.

In British Columbia, employers have a legal obligation to accommodate employees returning from a protected leave in accordance with the Employment Standards Act (ESA), the BC Human Rights Code, and the Workers’ Compensation Act (WCA). These laws ensure that employees can return to work fairly and equitably while safeguarding their rights. However, returning to work doesn’t always go as smoothly as planned, and complications may arise when an employee doesn’t agree with the comparable position their employer offers them. For this reason, it helps employers in BC to clearly understand their obligations and what recourse they and their employees have if disagreements arise. Below are the three statutes in BC that determine an employer’s legal duties.

BC Employers’ Legal Obligations to Employees Returning to Work From a Protected Leave

Employer’s Legal Obligations Under the Employment Standards Act

The Employment Standards Act (ESA) protects workers who take various types of leave, such as maternity, parental, family responsibility, or illness/injury leave. Under the ESA, employers cannot demote or terminate employees for taking a leave. Employers must also reinstate employees returning from a protected leave to their previous position or a comparable position with similar responsibilities and compensation. This ensures that employees are not penalized for exercising their right to take a protected leave of absence.

Employer’s Duty to Accommodate Under the BC Human Rights Code

In addition, the BC Human Rights Code prohibits employee discrimination based on various protected grounds, including physical and mental disability, family status, and sex. When an employee returns to work from a protected leave, such as maternity or medical leave, employers are required to make reasonable accommodations for any disabilities or limitations that affect the employee’s ability to perform their previous job duties. Accommodations can include:

• modifications to work duties, 
• specialized equipment, 
• flexible work hours
• altering the work environment

The duty to accommodate extends to the point of “undue hardship” for the employer. Factors such as financial costs, business disruption, or health and safety concerns can limit how far an employer must go in accommodating an employee. However, the threshold for undue hardship is high, and employers must demonstrate that they’ve explored all reasonable accommodation options before reaching this point.

Employer Requirements Under the Workers’ Compensation Act

Finally, for employees returning to work following a workplace injury, the Workers’ Compensation Act (WCA) sets out specific requirements for employers and employees. WorkSafeBC oversees the new return-to-work process (Bill 41) for workers recovering from work-related injuries, which includes an employer’s duty to provide suitable work arrangements for injured workers who are ready to return, even if they are not fully recovered. This could mean offering modified or light-duty positions that match the employee’s current capabilities. The return to work program also requires documentation and a collaborative process between the employer and employee, which we go into more detail about in our article titled “Navigating WorkSafe BC’s New Return to Work Requirements: Legal Responsibilities and Protected Leaves in British Columbia.”

What if an Employee Rejects a Comparable Position?

While the Employment Standards Act requires employers to either reinstate the employee to their pre-leave position or offer a comparable position (if the pre-leave position is no longer available), the employee isn’t obliged to agree with what’s offered. Disagreements can arise if an employee perceives that the comparable role they are offered does not meet the standard requirements. For example:

1. If the employee can prove to the ESA that the position offered isn’t comparable and therefore rejects the offer, the employee may be justified in claiming a breach of the Employment Standards Act or constructive dismissal (if the employer fails to offer suitable re-employment). In this case, the employee may be entitled to severance pay based on the employment tenure and the terms of their contract or collective agreement.
2. If the position the employee turns down meets the criteria to be considered comparable to the employee’s pre-leave position, the employee risks forfeiting their right to severance.
3. If the employee wishes to continue working but declines the offered position, they are encouraged to discuss their concerns and interests with the employer. The employer, however, is not required to make endless efforts to appease the employee. While a temporary layoff can be considered, they must comply with the provisions of the ESA. Layoffs are usually not permitted unless explicitly included in the employment contract or collective agreement and not unless mutually agreed upon.

Can an Employee Be Fired for Rejecting a Comparable Position?

That depends, and employers must proceed with caution, which we cover in more detail in an earlier article titled “Terminating Employment During a Leave of Absence – Leave It Alone?”

While the employer is obligated to make reasonable efforts to reinstate, re-employ and accommodate an employee returning to work from a protected leave, some limitations also protect the employer’s interests. For example, suppose the employee rejects the position offered and appeals to the Employment Standards branch, and the Branch deems the position offered is comparable; in that case, the employee’s failure to accept the position may warrant the employer to treat the rejection as a voluntary resignation (without severance being owed to the employee).

But the situation can be a precarious one. For example, if the new position is not comparable, the employer must provide a suitable alternative or return the employee to their original position; otherwise, the employee would likely be entitled to severance – either through the employer terminating the employment without just cause or through the employee leaving and claiming constructive dismissal. 

What if the Employee Wants Their Pre-leave Position Back, but It’s Unavailable?

According to the ESA, an employer is not entitled to permanently replace an employee’s position or otherwise terminate their position for reasons based on the employee’s protected leave. If, however, the employee’s pre-leave position is no longer available due to unrelated factors (such as a company’s closing or restructuring), the employer may have grounds to terminate the employment relationship with appropriate notice or severance. But that’s not all, because while the ESA legislates matters regarding termination, notice and severance, the Human Rights Code ensures employers provide reasonable accommodations to employees returning to work from a protected leave–especially if the employee’s leave was due to a physical or mental disability. Suppose an employee’s pre-leave position no longer exists due to a company restructuring; if the employee’s leave was based on a physical or mental disability or illness, the Human Rights Code requires the employer to explore accommodation options before resorting to termination.

What if the Employee Refuses the Position but Still Wants to Work?

While employers are required to make efforts to offer comparable positions and accommodate employees returning to work from leave, employers are not required to search for new options endlessly. If the employee wishes to maintain employment but declines the offered position and an alternative cannot be immediately established, temporary layoffs can be considered. Layoffs must comply with the provisions of the ESA and aren’t often permitted unless they are explicitly included in the employment contract or are done in mutual agreement between the employer and employee.

To Recap

While legislation exists that protects employees in British Columbia who are returning to work from a protected leave of absence, employees and employers sometimes have differing views on the position or accommodations offered. The good news is, in such a scenario, both parties have several options to consider for resolving such disputes, as outlined below.

Potential Recourse For Employees

1. Internal discussions and negotiation: In many cases, the best solution is for employees and employers to engage in open discussions. The employer can explain why the position is comparable, and the employee can express concerns about the role. Both sides should attempt to negotiate a mutually acceptable solution, possibly exploring other accommodation options.
2. Filing a complaint with the Employment Standards Branch: If the employee believes that their rights under the Employment Standards Act have been violated (for instance, if they were not reinstated to their previous or a comparable position) or if the employee considers the position offered to not be comparable in terms of duties, pay or working conditions, they can file a complaint with the Employment Standards Branch. The Branch can investigate and mediate disputes, potentially leading to a settlement or corrective action. For example, if the Branch determines that the employer’s offer doesn’t meet the standard of being “comparable,” the employee might be able to argue for breach of the ESA or constructive dismissal (and potentially be entitled to severance pay).
3. Filing a complaint with the Human Rights Tribunal: If an employee believes their employer has failed to accommodate their disability or has discriminated against them based on a protected ground (such as family status, physical or mental disability, or gender), they can file a complaint with the BC Human Rights Tribunal. The Tribunal can assess whether the employer has met its legal duty to accommodate.
4. Appealing to WorkSafeBC: Employees who disagree with a return-to-work plan or feel they were not accommodated following a workplace injury can appeal to WorkSafeBC. WorkSafeBC provides resources and review mechanisms to address disputes about suitable work assignments or accommodations related to workplace injuries.

Potential Recourse for Employers

1. A collaborative, cooperative approach: Many conflicts can be avoided and disagreements resolved by openly discussing an employee’s concerns and making them feel validated and valued. Employees returning to work from leave can be fraught with anxiety and initial discomfort as they adjust to a new routine. Sometimes, minor adjustments and compromises are all that’s needed for both parties to come to an agreement.
2. Potentially treating employee refusal as a voluntary resignation: While the employer is required to make reasonable efforts to provide a comparable position, an employee may not see it that way.
   • If the offered position is deemed comparable, and the employee refuses to accept it, the employer may be in a position to treat that refusal as a voluntary resignation instead of being required to terminate employment with notice or severance.
   • In cases where the employee refuses without a valid reason, termination without severance may be possible.
   •  If the position is not comparable, however, refusing it could lead to a constructive dismissal claim by the employee, potentially entitling them to severance.
   • In BC, if an employee’s position is no longer available (for reasons unrelated to their leave of absence), the employer can terminate the employment relationship, provided they comply with the requirements of the BC Employment Standards Act (ESA), such as (but not limited to) providing the employee with the appropriate amount of working notice or pay in lieu of notice.
   • If the employee refuses comparable positions offered and both the employee and employer wish to retain the employee’s employment, a temporary layoff may be an option so long as it is mutually agreed upon and explicitly stated within the employment contract or collective agreement.
3. Consulting with a trusted Employment Lawyer and HR Specialist: If a situation cannot be resolved in a timely and reasonable manner, it’s often wise to lean on professionals who can help you navigate potentially precarious situations while properly yielding to local employment laws and governance.

While employers in British Columbia have clear legal responsibilities to accommodate employees returning to work from a protected leave, if disputes arise over the suitability of the offered position, both parties should first seek to resolve the issue through negotiation or internal processes. If that fails, legal avenues are available to protect employees’ rights while ensuring employers aren’t unfairly affected. By staying informed and proactive, businesses can navigate these legal duties and foster a supportive and compliant workplace culture while avoiding costly litigations.

Spraggs Law Can Help

If you’re a business owner or employee in British Columbia and you have questions about protected leaves, employment law and company policies, our Human Resources Consultant and Employment Law Experts can help. Contact us today at (604) 359-1627 or reach out to us online.

Please note: This article does not contain legal advice. If you would like advice on your specific situation, please contact Spraggs Law.