The employer must consider the circumstances the employee could return to work and if they could reasonably accommodate that
If an employee has been absent for a long time there a few things an employer should consider before termination becomes a option.
The employer must primarily look at what the prognosis for the employee is going forward, according to Sherridan Cook, partner at Buddle Findlay.
“The fact that they have been away from work for a long period of time will be a factor you would consider in whether you could terminate,” he told HRD.
“But the real risk is around looking at whether it is likely that they would return to work in the near future, under what circumstances could they return to work and whether or not you can reasonably accommodate that.
“They are the main things that employers tend to overlook and that creates the risk.”
The employee may not be able to return to their full-time employment and perform their normal duties as before, said Cook.
However, they may be able to return to perform different duties, work lesser hours or work at a different location that would facilitate them returning to work.
As an employer you need to consider whether you can reasonably accommodate that given the nature of the work and your business, and you need to consult with the employee about that as well, he added.
“Then it’s important to look at the prognosis of the employee in terms of their medical condition,” he said.
“If they have been off work for a year but they are able return to work in the next few weeks then you are unlikely to be able to dismiss them.
“Even though you have waited a year you need to actually look at when they can return and also have a consideration as to the employment agreements and policies you have in place and the periods that they provide for.”
