Canada Labour Code

Marginal note:Prohibition

• 239 (1) Subject to subsection (1.1), no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence due to illness or injury if

  • (a) the employee has completed three consecutive months of continuous employment by the employer prior to the absence;

  • (b) the period of absence does not exceed 17 weeks; and

  • (c) the employee, if requested in writing by the employer within fifteen days after his return to work, provides the employer with a certificate of a qualified medical practitioner certifying that the employee was incapable of working due to illness or injury for a specified period of time, and that that period of time coincides with the absence of the employee from work.

• Marginal note:Exception

  (1.1) An employer may assign to a different position, with different terms and conditions of employment, any employee who, after an absence due to illness or injury, is unable to perform the work performed by the employee prior to the absence.

• (2) [Repealed, 1993, c. 42, s. 32]

• Marginal note:Benefits continue

  (2.1) The pension, health and disability benefits and the seniority of an employee who is absent from work due to illness or injury shall accumulate during the entire period of the absence if the conditions set out in subsection (1) are met in respect of that absence.

• Marginal note:Contributions by employee

  (2.2) Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (2.1), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any absence due to illness or injury unless, at the commencement of the absence or within a reasonable time thereafter, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.

• Marginal note:Contributions by employer

  (2.3) An employer who pays contributions in respect of a benefit referred to in subsection (2.1) shall continue to pay those contributions during an employee’s absence due to illness or injury in at least the same proportion as if the employee were not absent, unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

• Marginal note:Failure to pay contributions

  (3) For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (2.2) and (2.3), the benefits shall not accumulate during the absence and employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Deemed continuous employment

  (3.1) For the purposes of calculating benefits, other than benefits referred to in subsection (2.1), of an employee who is absent from work due to illness or injury where the conditions set out in subsection (1) are met in respect of that absence, employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Regulations

  (4) The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.

• Marginal note:Application of section 189

  (5) Section 189 applies for the purposes of this Division.