Employers are often unsure whether they can terminate an employee who has been absent due to a prolonged illness or injury. The answer is rarely straightforward, as both employment standards legislation and human rights law impose significant restrictions. In my July 24, 2025 article, “What is just cause for quitting or being fired in BC”, I wrote, “A prolonged illness or injury would only frustrate an employment contract if the illness made it impossible for the employee to fulfill the employment agreement. The incapacity must fundamentally alter the employment relationship.” I also noted that dismissal for prolonged illness could have legal consequences under human rights legislation or employment standards legislation. This follow up article will examine both aspects.
As of November 27, 2025, the BC Employment Standards Act provides employees the entitlement to up to 27 weeks of unpaid leave within a period of 52 weeks due to their own illness or injury. In practical terms, this means an employer generally cannot terminate an employee simply because they are absent due to illness if they are within the protected leave period.
An employee taking this leave must promptly provide a medical certificate signed by a medical doctor, nurse practitioner, or other designated health certificate which states:
- That the employee is unable to work for medical reasons
- The date on which the leave began or is expected to begin
- The date on which the employee is expected to be able to return to work.
The 27 weeks need not be consecutive, and subsequent leaves can be taken (a) if the employee attempts to return earlier than anticipated, within the time set out in the initial medical certificate, or (b) with a new certificate. However, regardless of the number of leaves the total available serious personal injury or illness leave protected by the Employment Standards Act is 27 weeks.
A partial week counts as a full week, so eight days off counts as two weeks; three eight-day stints off counts as six weeks (even though 24 days is less than five weeks). Many occupations are excluded from the BC Employment Standards Act provisions, including most licensed professionals; however, managers are not excluded from this section. Employment standards legislation typically supersedes the common law, and hence the common law doctrine of frustration may not apply for illnesses covered under this section.
Further, both federal and provincial human rights legislation prohibit discrimination based on disability. In British Columbia, disability is defined broadly and includes physical or mental conditions that may be visible or invisible. This can encompass illnesses, injuries, developmental disabilities, and substance dependence, whether the condition is temporary or permanent. The law recognizes that many disabilities are episodic or not immediately apparent yet still require protection. At the same time, human rights legislation allows for a limited exception where a refusal, limitation, specification, or preference is based on a bona fide occupational requirement. This means that certain job requirements may be lawful if they are genuinely necessary to perform the work and cannot be accommodated without undue hardship. In practical terms, employers cannot terminate an employee solely because of a health condition if reasonable accommodations would allow the employee to continue working effectively.
In conclusion, there are two key statutory constraints in British Columbia when considering dismissal for prolonged illness or injury: the Employment Standards Act’s protected illness leave (up to 27 weeks within a 52-week period) and the Human Rights Code’s prohibition against discrimination based on disability. Importantly, an employer’s duty to accommodate under the Human Rights Code may continue even after the Employment Standards Act leave entitlement has been exhausted. Employers should seek legal advice before making termination decisions in prolonged illness cases, as the legal risks will depend heavily on the specific medical circumstances and accommodation efforts.