Taking a job-protected leave in Ontario does not mean your employment is immune to termination—but the law strictly limits when and how an employer can end your employment during or after a leave. Under the Employment Standards Act (ESA) and the Human Rights Code, employees on approved leave are shielded from dismissal directly related to their absence. However, terminations may occur for reasons unrelated to the leave. This blog explains your rights, employer obligations, and how to respond if you believe you’ve been wrongfully dismissed.

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1. Protected Leaves in Ontario

The ESA guarantees unpaid, job-protected leave for various life events, including:

• Sick leave (3 days/year).
• Pregnancy/parental leave (up to 77 weeks).
• Family caregiver leave (8 weeks).
• Bereavement leave (2 days).
• Domestic/sexual violence leave (10 days/year).

The Human Rights Code also requires employers to accommodate disabilities, which may include extended medical leave.

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2. When Is Termination Illegal?

Employers cannot fire, demote, or penalize you for:

• Taking or planning to take ESA-protected leave.
• Requesting disability-related accommodations (e.g., extended medical leave).
• Being pregnant or on maternity leave.

Examples of Illegal Termination:

• Firing an employee after they notify their employer about upcoming parental leave.
• Denying a promotion because an employee took sick leave.

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3. When Might Termination Be Legal?

Employers can terminate employment during leave only if:

• The reason is unrelated to the leave (e.g., company-wide layoffs, closure, or restructuring).
• The employee cannot return to work due to permanent incapacity, and accommodation causes undue hardship.

Key Considerations:

• Employers must prove the termination was not influenced by the leave.
• Employees on leave during layoffs may still have recall rights if the employer rehires.

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4. Employer’s Burden of Proof

If challenged, employers must demonstrate:

• The termination was for a legitimate business reason (e.g., elimination of the role, misconduct unrelated to leave).
• They met their duty to accommodate under the Human Rights Code (if applicable).

Undue Hardship: Employers must show that accommodating a return to work (e.g., modified duties, extended leave) would cause excessive cost or safety risks.

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5. Remedies for Wrongful Termination

If you’re fired for taking leave, you can:

1. File an ESA Complaint: Submit to the Ontario Ministry of Labour within 2 years for reinstatement and/or compensation.
2. Sue for Damages: Claim wrongful dismissal through civil court for severance pay, moral damages, or human rights violations.
3. File a Human Rights Claim: If discrimination is involved, submit to the Human Rights Tribunal of Ontario (HRTO) within 1 year.

Potential Outcomes:

• Reinstatement to your position.
• Compensation for lost wages, emotional distress, or punitive damages.

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6. Steps to Protect Your Rights

• Document Everything: Save emails, leave requests, medical notes, and termination letters.
• Seek Legal Advice: Consult an employment lawyer to assess your case.
• Apply for EI: If terminated, you may qualify for Employment Insurance while disputing your dismissal.

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7. Employer Best Practices

• Train Managers: Ensure they understand ESA and human rights obligations.
• Document Performance Issues: Address misconduct or performance problems before an employee takes leave.
• Consult Legal Counsel: Before terminating an employee on leave, confirm the decision is defensible.

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8. Frequently Asked Questions

Q: Can I be fired while on probation during a leave?
A: Yes, but only if the reason is unrelated to the leave (e.g., poor performance documented before the leave).

Q: Can my employer ask for medical updates during a long-term leave?
A: Yes, but only to assess accommodation needs—not for intrusive details about your condition.

Q: Does EI eligibility affect my right to challenge termination?
A: No. Receiving EI does not prevent you from filing a wrongful dismissal claim.

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9. Conclusion

In Ontario, termination during leave is presumed retaliatory unless the employer proves otherwise. Employees have robust protections under the ESA and Human Rights Code, but navigating disputes requires prompt action and documentation. If you suspect your dismissal was linked to your leave, seek legal advice immediately to enforce your rights.

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Free Consultation with London Employment Lawyers

Ontario’s laws provide critical protections for employees during mass layoffs, ensuring they receive fair notice, severance pay, and support. If you’re affected by a group termination, understanding your rights and seeking professional advice can help you navigate this challenging time and secure the compensation you deserve. Please do not hesitate to contact our experienced Ottawa employment lawyers for a free legal consultation. Randy Ai Law Office can be contacted at (548) 489-2006 or fill out the contact form.