Employee leave requests and workplace accommodation
From navigating the specifics around leave requests to understanding an employer’s duty to accommodate, it’s a process filled with legal obligations and sensitive conversations. Getting it wrong can lead to serious noncompliance issues and have a significant impact on your workplace culture. In our Compliance in Practice webinar, Handling Leave Requests and Accommodation with Confidence, Solutions Expert, Sean Morrison, and Senior HR Professional, Kim Morris, shared actionable strategies for handling employee medical leave of absence requests and managing workplace accommodations.
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Expert Q&A: Leave requests and accommodations
Sean: Where do most people require clarity when it comes to protected leaves?
Kim: The main areas are figuring out if a leave qualifies as a protected leave, what proof an employer is allowed to request, and how to manage scheduling, coverage, or backfilling the role. We receive many calls on these topics from our members, and we’ll cover them all today. Let’s start with why we chose to focus on protected leaves and accommodation.
Sean: Why are protected leaves and accommodation such important topics?
Kim: These are frequent issues for HR professionals across Canada. To manage them successfully, you need the right policy framework, compliant forms, clear step-by-step processes, and access to expert guidance when things get complex. That’s where we support our clients.
Sean: Let’s start with the basics. What is a protected leave?
Kim: Protected leave simply means job-protected time off as outlined under the employment standards legislation of your jurisdiction. Examples include pregnancy or parental leave, compassionate care or critical illness leave, bereavement leave, and personal illness or medical leave. They are called protected leaves because the employee’s job is protected. An employee cannot face discipline or reprisal for taking a protected leave and they are generally entitled to return to the same or a comparable role when the leave ends.
Sean: Is handling protected leaves a one-size-fits-all situation?
Kim: Not quite. While the categories are similar across Canada, the specifics, such as names, lengths, eligibility criteria, paid or unpaid status, what proof you can request, and notice requirements, all vary by jurisdiction. That’s why it is best practice to have a simple comparison chart for all jurisdictions you operate in, and a repeatable intake checklist.
Sean: Can an employer refuse an employee’s leave request for protected leave?
Kim: In short, no. If the leave is protected under employment standards and the employee meets the criteria for the leave, then in general, no, you can’t refuse their request. The employee also can’t be penalized or disadvantaged for requesting or taking a protected leave.
Sean: What if the employee isn’t eligible for Employment Insurance (EI) but wants to take a protected leave?
Kim: Good question. An employee’s entitlement to protected leave under employment standards stands on its own. EI benefits are managed by Service Canada and are a separate decision. An employee can be entitled to leave even if they’re denied EI or choose not to apply. As the employer, your responsibility is to confirm entitlement to the protected leave and issue a record of employment (ROE). After that, any EI eligibility is between the employee and Service Canada.
Sean: Where does protected leave fit in when it comes to attendance issues?
Kim: Protected leave fall under the “can’t attend” category, but it’s not automatic. You must still confirm eligibility, such as employee status and tenure, the qualifying event or relationship, and notice requirements, and collect reasonable validation or proof that the leave applies to the employee’s request. You also need to understand the expected duration of the absence.
Sean: What about proof? What kind of information can employers request?
Kim: Employers can ask for reasonable validation to confirm an employee’s entitlement to a protected leave when permitted by legislation. For example, for family caregiver or compassionate care leaves, it’s often appropriate to request a health practitioner’s confirmation that the family member meets the criteria. Once you’ve collected everything required, acknowledge leave requests in writing, set up check-ins and return dates, and track benefits and records as required. Documentation is key here.
Sean: Do employers have to pay an employee, continue benefits, or allow other time off in addition to the protected leave?
Kim: Most protected leaves are unpaid by the employer, and rules around benefits continuation vary by jurisdiction. In general, benefits should continue, but specifics will depend on your jurisdiction. For example, an employee may need to continue paying their portion of premiums to maintain coverage. Also, employees can “stack” leaves. For example, pregnancy leave followed by parental leave and they can sometimes combine vacation or other paid days if allowed.
Sean: Is it up to the employer whether paid vacation is used for a protected leave?
Kim: No. Employees may request to use accrued vacation pay to supplement their income during an unpaid protected leave, but an employer can’t require them to do so or require them to use or substitute vacation for a protected leave.
Sean: How should a business handle backfilling a role when someone is on protected leave?
Kim: You can backfill a role to cover the gap, but keep in mind that the goal of the temporary coverage is to preserve job protection for the employee who is off on leave. If you hire externally, the offer should clearly connect the assignment to the expected return of your employee on leave. If backfilling internally, clarify that it is temporary and linked to the leave, so you’re not promising a permanent role. Make sure your returning employee’s job, or a comparable one, is waiting for them.
Sean: What if an employee returns earlier than planned?
Kim: Employees can usually return earlier than planned if they provide the required notice. Depending on the type of leave taken, medical documentation may also be required to ensure that an employee is not returning to work before they are ready to do so. Again, this is something that will vary by jurisdiction. But in general, employers must accommodate an employee’s early return from a leave.
Sean: What risks do businesses face if protected leaves are mishandled?
Kim: Mishandling protected leaves can expose a business to significant legal, financial, and reputational risks. Ignoring the rules can violate employment standards legislation and lead to expensive administrative and monetary penalties for a business. In addition to employment standards violations, mishandling a protected leave can lead to human rights complaints if the employee experiences discrimination or reprisal related to the leave. Mishandling a protected leave can also harm workplace morale, decrease employee confidence, and undermine the organization’s reputation as a fair and supportive employer.
Sean: We’ve covered protected leaves; many of those situations also trigger workplace accommodation requests. What do we mean by accommodation in the workplace?
Kim: Accommodation is your duty as an employer, under human rights laws, to make reasonable adjustments to work rules, duties, or schedules so an employee can do their job without discrimination, up to the point of undue hardship. This obligation starts as soon as you know, or should reasonably know, that a prohibited ground of discrimination is involved. The list of grounds varies by jurisdiction but commonly include disability, religion or creed, family status, sex, or age.
Sean: If an employee doesn’t directly ask for accommodation, but there are clear signs, what’s the right first move for employer?
Kim: Ask, support, and plan. If a performance or attendance concern hints at a prohibited ground of discrimination, you have a duty to inquire if the employee requires any support or adjustments at work. Only request information that’s necessary, such as work-related functional limitations and expected duration. Keep everything confidential, private, minimal, and practical.
Sean: When a formal accommodation plan is needed, where should employers start?
Kim: Usually, managers spot and handle the initial situation, but HR or leadership should own and oversee the plan. Start by confirming the essential duties of the job, collecting functional information (not the diagnosis, just the prognosis), setting temporary accommodations with a review date, and documenting everything. Make it clear that it’s a living plan that will be revisited.
Sean: Can you clarify the difference between prognosis and diagnosis in this context?
Kim: Absolutely. Employers should never ask for information on an employee’s medical history or the diagnosis itself but can ask for the prognosis- information on what the employee can and cannot do, and for how long. The goal is to understand the employee’s functional limitations and determine what reasonable accommodations are required while respecting the employee’s privacy.
Sean: For someone who has not completed one before, what should a basic accommodation plan cover?
Kim: It starts collaboratively and is always case-by-case. Start by identifying why you’re accommodating; this is the employee’s specific needs that are tied to a prohibited ground of discrimination. From there, outline essential job duties, document what the employee can and cannot do, explore possible accommodations, and write down what you’ve agreed to. Include implementation steps, including who does what and by when, and set a clear review plan. Keep it confidential, use plain language, and make it clear that the plan will be revisited as circumstances change.
Sean: When an employee is ready to come back to work, how should employers manage a phased return, and what changes if it’s a safety-sensitive job?
Kim: For a phased return, keep it temporary, specific, and reviewable. This might involve fewer hours or lighter duties, with set review dates. In safety-sensitive jobs, add controls or duties to ensure genuine safety within the employee’s limitations. If safety can’t be maintained, don’t force it. HR should own the return-to-work plan and managers should implement the plan and flag issues.
Sean: Is there a legal limit on how far employers must go to accommodate? How do employers know if they’ve met their obligation and it’s reasonable to stop?
Kim: Employers have a duty to accommodate up to undue hardship. The duty to accommodate is real and ongoing; the point where you can stop is when further changes would create serious, proven limits under the law. The core idea is similar across Canada, but each jurisdiction sets or interprets the factors slightly differently. For example, under the Ontario Human Rights Code, decision-makers look at cost, availability of outside funding, and health and safety impacts. Undue hardship is assessed based on objective evidence, and employers must document all efforts to accommodate before concluding undue hardship.
Sean: Thanks so much, Kim. That brings our discussion on protected leaves and accommodations full circle. Next in our series, we’ll be connecting the dots with workplace investigations and progressive discipline. Stay tuned!
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With our team of HR advisors and consultants and user-friendly HR software, navigating the rules around leave requests and workplace accommodation for employees is simple. Having compliant workplace policies is only the first step. Remember, they’re only effective when they’re understood and applied consistently.
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