If you own or manage a business in Alberta, your employees will get sick. There is nothing you can do about this. If you’ve built strong relationships with your team, you may want to rely on the trust and mutual respect to work through this situation together. However, sometimes things are not that straightforward, and it’s important to establish clarity and clear policies to manage these situations even in the best employment relationships.

This guide walks you through this situation, and specifically addresses how to cover job-protected long-term illness and injury leave under Alberta’s Employment Standards Code and the duty to accommodate under the Alberta Human Rights Act

You will learn when an illness qualifies as a disability, what medical information you can and cannot request, what reasonable accommodation looks like in practice, how the undue hardship threshold actually works, and when frustration of contract finally allows employment to end. 

If your business is dealing with an employee illness right now, do not wait for a complaint to force the issue. Contact Cashion Legal for a case evaluation and get a clear strategy before you make your next

Your Situation

If you are reading this, you are probably not researching accommodation law out of curiosity. Something has landed on your desk. Maybe an employee has disclosed a health condition and asked for changes to their role. Maybe performance has slipped and you suspect a medical issue is behind it, but nobody has said so out loud. Maybe you are months into an accommodation that is straining your team, or deep into a sick leave with no return date in sight, and you are wondering how much longer the law expects you to wait.

Whatever the specifics, the questions are usually the same. What leave is this employee entitled to? Is their condition actually a disability? What am I allowed to ask? How far do I have to go? And when, if ever, can I end the employment relationship without triggering a claim?

This guide answers those questions in order, starting with the baseline protections every Alberta employer must respect, then walking through the accommodation process from start to finish.

A Practical Roadmap for Alberta Employers to Accommodate Employee Illness

As will be covered in detail below, here is the sequence to follow when employee illness arises in your workplace:

1. Confirm the employee’s entitlement to job-protected leave under the Employment Standards Code and request the required medical certificate.
2. Treat any disclosure of a health condition affecting work as an accommodation request, and inquire proactively when the signs are apparent.
3. Appoint one person to manage the file, keep medical information confidential, and open a respectful dialogue with the employee.
4. Request focused medical information about limitations, prognosis, and timelines, using a job description and functional abilities form. Seek clarification when information is inadequate.
5. Identify the truly essential requirements of the job, then canvass every reasonable modification to everything else.
6. Offer reasonable accommodation and manage the employee’s participation. Monitor and adjust once the employee is back at work.
7. Assert undue hardship only with objective evidence, and treat termination for frustration as a last resort supported by a thorough, well-documented file.

Basic Protections Under Alberta’s Employment Standards Code

Before any question of accommodation arises, Alberta’s Employment Standards Code sets a floor: long-term illness and injury leave. This is a job-protected, unpaid leave, and the basic rules are straightforward:

• Employees are eligible if they have been employed at least 90 days with the same employer.
• Eligible employees can take time off work without pay without risk of losing their job.
• Employers must grant the leave to eligible employees and give them their same, or an equivalent, job back when they return to work.
• Employers are not required to pay wages or benefits during the leave unless an employment contract or collective agreement says otherwise.
• Employees on leave are considered continuously employed for the purposes of calculating years of service.

Eligibility and Length of Leave

The 90-day threshold is a minimum for entitlement, not a bar on generosity. You can grant leave to an employee with less than 90 days of service; employment standards legislation simply does not require you to.

Effective January 1, 2026, employees can take up to 27 weeks of leave per calendar year. If an employee started their leave before January 1, 2026, the length of the leave can be adjusted, and if the new end date extends beyond the date on the medical certificate already provided, the employee must provide a new medical certificate.

Medical Certificates and Notice

The employee must provide a medical certificate stating the estimated duration of the leave. The certificate may be issued by a physician or a nurse practitioner, and it must be provided before the leave begins, or as soon as is reasonable if that is not possible.

To start the leave, the employee must give written notice as soon as is reasonable, including the estimated date of return to work, and must keep you informed of any change to that estimate.

To end the leave, the employee must give at least one week’s written notice of their return date unless you agree otherwise. If the employee will not be returning at all, they must give at least two weeks’ written notice of their intention to terminate employment. If an employee fails to give notice or fails to report to work on their next scheduled work day after the leave ends, you are not required to reinstate them, unless the failure was due to unforeseeable or unpreventable circumstances.

Termination During and After Leave

Employees cannot be terminated or laid off while on a job-protected leave, with one narrow exception: if you suspend or discontinue the business. Even then, if the business starts up again within 52 weeks after the leave ends, you must reinstate the employee. And you can never discriminate against, lay off, terminate, or force the resignation of an employee because they requested a job-protected leave.

Here is the critical point most employers miss: the Employment Standards Code is the floor, not the ceiling. The end of a 27-week leave does not mean you can simply move on. If the employee’s illness qualifies as a disability, human rights law requires you to keep accommodating, potentially far beyond the statutory leave period. That is where the rest of this guide comes in.

What Counts as a Disability in Alberta

The Alberta Human Rights Act prohibits discrimination in employment based on physical disability and mental disability, and most illnesses and injuries serious enough to keep an employee off work will qualify. Alberta’s definition is notably broad. Physical disability includes “any degree of physical disability, infirmity, malformation or disfigurement,” and Alberta adjudicators have emphasized that this wording does not require a condition to be severe or prolonged.

Courts and tribunals across Canada interpret disability expansively to fulfill the remedial purpose of human rights legislation. In practice, adjudicators tend to find a disability where a physical or mental condition is permanent or recurring rather than temporary, is beyond the employee’s control, and prevents the employee from meeting a job requirement.

Conditions commonly recognized as disabilities include:

• Physical injuries and impairments, including back and joint injuries, amputation, and paralysis
• Repetitive strain injuries such as carpal tunnel syndrome
• Vision and hearing loss, including partial limitations
• Chronic illnesses such as cancer, HIV/AIDS, Crohn’s disease, and epilepsy
• Cardiovascular and respiratory conditions
• Mental disorders such as depression, anxiety, and bipolar disorder
• Substance use disorders involving drugs or alcohol
• Developmental conditions such as autism and learning disabilities

Two categories deserve special attention from employers because they are so often misunderstood.

Temporary and Minor Illnesses

Not every medical problem is a disability. Adjudicators have held that common, temporary, or mild ailments that carry no stigma and impose no lasting limitation generally fall outside human rights protection. Conditions found not to qualify in particular circumstances include the flu, gastroenteritis, sinusitis, minor soft tissue injuries that resolved after a brief recovery, muscle stiffness treatable with over-the-counter medication, dental issues requiring surgical repair, and a nosebleed with dizziness.

But be careful before dismissing a condition as too minor. Severity and duration matter more than labels. A minor injury that turns out to be permanent, or a temporary condition that severely limits an employee’s ability to work, can still qualify as a disability. Migraines and lasting soft tissue injuries have both been recognized in the right circumstances. When in doubt, treat the situation as a potential accommodation matter and gather medical information before making decisions.

Perceived Disabilities

You can discriminate against an employee who has no disability at all. If you believe an employee has a condition, and you treat them adversely because of that belief, the law treats your perception the same as an actual disability. A classic example is assuming an employee with a chronic but well-managed illness cannot handle certain duties. Assessing employees on stereotypes rather than actual abilities is exactly what human rights legislation is designed to prevent. If you suspect a health issue is affecting someone’s capacity to work, the answer is proper medical evidence, never assumption.

How a Discrimination Claim Works

Understanding how a workplace discrimination complaint is analyzed helps you make better decisions long before a complaint is ever filed. In Alberta, complaints are filed with the Alberta Human Rights Commission, which investigates and can refer matters to a tribunal hearing.

The employee must first establish a prima facie case of discrimination by proving three things: they have a disability within the meaning of the legislation, they experienced adverse treatment such as discipline, denial of a benefit, or termination, and the disability was a factor in that adverse treatment.

That third element, the nexus, is where many claims succeed or fail. The connection between disability and adverse treatment must be proven with evidence, not assumed. The mere fact that an employer knew about an illness at the time of a termination is not enough on its own to establish that the illness played a role in the decision.

Two examples show how the nexus requirement works in practice:

1. In one scenario, an employer’s policy required employees to disclose any drug addiction and seek treatment before becoming involved in a workplace incident. An employee did not disclose an addiction, was involved in a workplace accident, tested positive for drugs, and was terminated. There was no discrimination, because the employee was terminated for violating the disclosure policy, not for the addiction itself. 
2. In another scenario, an employee who was repeatedly absent for medical reasons was terminated not for the absences themselves, but for repeatedly failing to call in before shifts as the attendance policy required, despite clear warnings. Again, no discrimination.

The lesson for employers is not that clever framing will save a bad termination. It is that clear, consistently enforced, non-discriminatory workplace rules, applied for reasons genuinely unrelated to illness or disability, remain enforceable.

If the employee does establish a prima facie case, the burden shifts to you. Your main defence is proving that the standard you applied is a bona fide occupational requirement (BFOR). You must show the standard was adopted for a purpose rationally connected to the job, adopted honestly and in good faith, and reasonably necessary to accomplish that purpose. Here is the critical part: you cannot show a standard is reasonably necessary unless you have taken every reasonable step, short of undue hardship, to accommodate the employee. Accommodation is not a nice-to-have layered on top of the legal test. It is the heart of the test.

When Your Duty Is Triggered, Including When Nobody Asks

Most often, the duty to accommodate begins when an employee tells you about an illness or injury that interferes with their work and asks for help. But do not wait for a formal request. If an employee explains a string of absences or declining performance by mentioning a health condition, you now know about a potential disability, and the accommodation process should begin.

Alberta employers also have a duty to inquire. You cannot ignore obvious signs that a health condition is impairing an employee’s work. If it is reasonably apparent that something medical is going on, raise your performance or behaviour concerns tactfully, and let the employee know you will respond to any accommodation request connected to a disability. This matters most with mental health and addiction issues, where employees may fear stigma or may not fully recognize their own condition. Employers have been found liable for rushing to discipline when the warning signs of an underlying illness were staring them in the face.

Once you make appropriate inquiries, the ball moves to the employee’s court. If they refuse to provide information or cooperate with the process, you may be found to have discharged your duty.

The Two Components of Accommodation

The duty to accommodate has a procedural component and a substantive component, and you need to satisfy both.

The procedural component requires you to take all reasonable steps to gather the information needed to assess the employee’s limitations and canvass possible accommodations. The substantive component requires you to actually offer appropriate accommodations up to the point of undue hardship.

Skipping the process is dangerous even when you believe the outcome would have been the same. If you never properly assessed the employee’s limitations or the options available in your workplace, any accommodation you offered may be seen as arbitrary, and your undue hardship argument collapses because you cannot prove what you never investigated.

One more warning: you cannot outsource this duty. Many employers rely on insurers or third-party return-to-work providers to manage illness and disability files. Those services can be valuable, but the legal duty stays with you. Relying uncritically on an insurer’s assessment of an employee’s ability to work, instead of conducting your own, can leave you holding the liability.

Collecting Medical Information: What You Can and Cannot Ask

Medical information is the fuel of the accommodation process, and employers have both the right and the obligation to request enough of it to do the job properly. The scope, however, is limited. You are generally entitled to know:

• That a disability exists, though usually not the specific diagnosis
• The functional limitations the condition places on the employee, such as lifting restrictions, required breaks, restricted range of motion, or sensitivity to particular stressors
• The prognosis, meaning whether the condition is expected to improve, worsen, or stay the same
• The expected timeline for recovery and return to work

You are the expert on your workplace, so tell the employee’s medical team what you need. Providing a job description and a functional abilities form allows a physician to address the actual demands of the role instead of writing a vague note.

If the medical information you receive is vague, contradictory, or incomplete, do not guess and do not simply proceed. Send the employee back to their physician for clarification. Failing to seek clarification breaches your procedural duty, but so does making accommodation decisions on inadequate evidence. An independent medical examination may be justified where there is genuine reason to question the reliability of the information provided, though not simply to second-guess a physician you disagree with.

Be flexible with timelines. Specialist appointments take time, and the duty to accommodate requires letting that process play out. Throughout, keep medical information confidential and restrict access to those who genuinely need it.

What Accommodation Looks Like in Practice

Accommodation is individualized. There is no master list, but common measures include:

• Tolerating absences. This is the most common accommodation of all. Illness-related absences must be tolerated unless they cause undue hardship, though you may require medical evidence supporting them.
• Modifying schedules and duties. Reduced hours, shift changes, longer breaks, flexible time for medical appointments, or reassigning non-essential tasks to other employees.
• Adjusting the physical workplace. Ramps, widened doorways, air filtration for chemical sensitivities, accessible workstations, or remote work.
• Assistive devices. Ergonomic equipment, lifting aids, or speech-to-text software.
• Gradual return to work. Reintroducing an employee through light duties or reduced hours after an extended absence, sometimes called work hardening.
• Transfer to a vacant position. If the employee is qualified for an open role that fits their limitations, you should consider it. The employee needs to be a qualified candidate, not necessarily the most qualified candidate.

The duty has real limits. You are not required to create a brand new position, promote an employee into a role they would not otherwise have earned, or pay wages for work that is not being performed. Displacing another employee from their job is typically undue hardship, although exceptions can arise with temporary postings or where seniority systems already allow bumping.

One caution on compensation and benefits: while pay can generally be tied to work actually performed, rights that accrue purely through the passage of time, such as seniority, typically continue during an illness-related leave. Cutting extended benefits for an employee on an approved leave simply because they are no longer actively working can also expose an employer to damages for injury to dignity.

Finally, accommodation is a two-way street. An employee must accept a reasonable accommodation and cannot hold out for their preferred or perfect solution. If you offer a reasonable proposal and the employee rejects it, your duty may well be discharged.

Undue Hardship: Where the Duty Ends

The duty to accommodate extends to the point of undue hardship, and that threshold is high. Some hardship is expected. The question is whether the hardship is undue, assessed with common sense and flexibility in light of your business’s size, resources, and operations.

The main factors are:

Cost. Cost alone rarely establishes undue hardship. You must show a significant burden on operations with accurate, objective, quantifiable evidence. Impressions and rough estimates will not survive scrutiny.

Safety. A safety risk to the employee, co-workers, or the public can amount to undue hardship, but it must be substantial in nature, severity, and probability, and again supported by objective evidence. Safety arguments carry the most weight in safety-sensitive settings such as construction, manufacturing, transportation, and workplaces serving vulnerable people.

Operational impact. You are not required to fundamentally alter your business. Undue hardship has been recognized where an accommodated employee’s productivity fell to half of expectations and co-workers were absorbing the shortfall, and where exempting one employee from weekend and on-call work would have strained a small workforce and the employer’s ability to serve clients. This factor is often where small businesses have their strongest arguments, because a five-person shop absorbs an absence very differently than a national employer does.

Employee morale. Co-worker resentment about perceived special treatment is not a legitimate basis for undue hardship. More than minor inconvenience to other staff is required.

Whatever the basis, document it. A tribunal will expect objective evidence and a reasoned balancing of interests, not after-the-fact justification. Learn more about undue hardship here.

Extended Absences, Frustration, and Ending Employment

The hardest scenario for most small businesses is the long illness with no end in sight. Remember that the statutory leave under the Employment Standards Code is only the floor. Human rights law requires you to maintain the employment relationship during an illness-related absence unless doing so is undue hardship, and for employers with meaningful resources, that can mean years. Do not set arbitrary deadlines, such as automatic termination when the statutory leave or a fixed period of unpaid leave expires. Automatic cutoffs abandon the individualized assessment the law demands and will likely sink a BFOR defence.

The governing principle is this: if you can show that, despite reasonable accommodation efforts, the employee will be unable to resume their duties in the reasonably foreseeable future, you will have discharged your duty. Employers have successfully defended terminations after tolerating absences of three years or more, but only where the file showed sustained efforts to obtain medical information and locate alternative positions, and the search ultimately produced nothing.

Ending employment in this situation engages a second legal doctrine: frustration of contract. Frustration occurs when circumstances make future performance radically different from what the parties bargained for, and when it applies, common law reasonable notice is not owed. The standard is very high. You must show no reasonable prospect that the employee can return to work, considering the nature and expected duration of the incapacity, the length of past service, the nature of the job, and the terms of the contract, including any disability benefit provisions. Sporadic, brief returns to work will not defeat frustration where the overall pattern shows a lengthy incapacity, but frustration is never found lightly.

Two final traps for Alberta employers:

First, even where employment ends through frustration, minimum standards termination entitlements may still be owed, and federally regulated employers face an outright bar on relying on frustration for work-related illness or injury under the Canada Labour Code.

Second, before termination, make sure the employee understands throughout the process that a failure to return to work could ultimately end the employment relationship, and that your file documents every accommodation you considered, offered, and why further steps would be undue hardship. Where an employee presents litigation risk, a properly drafted release supported by adequate consideration is worth its weight in gold.

Get Advice Before the Hard Decisions

Illness and accommodation files rarely go wrong at the end. They go wrong at the beginning, when an employer disciplines too quickly, asks for the wrong medical information, or makes assumptions about what an employee can do. The good news is that every one of those mistakes is avoidable with the right process.

As Calgary employment lawyers acting for both employers and employees, Cashion Legal advises Alberta businesses on the full life cycle of employee illness, from the first doctor’s note through statutory leave, accommodation, undue hardship assessments and, where necessary, defensible terminations. If your business is facing a difficult accommodation scenario, book a case evaluation before you act, not after a complaint arrives.

FAQs

About the Author

Mike Cashion is a Calgary employment lawyer who represents small businesses and employees in a wide variety of employment matters. His primary focus is on complex cases involving allegations of just cause, shareholder disputes, and non-competition disputes. He also represents parties in severance negotiations, wrongful dismissal claims, constructive dismissal claims, workplace harassment, sexual harassment, discrimination, human rights complaints, workplace investigations, and employment contract review.