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Question? How Long is Your Employer Expected to Keep Your Job Open if You've Been off Work?

You have worked for your employer for fifteen years and are involved in a serious accident. Your rehab is going to be long and uncertain. However your doctor will not say how long that will be or when you are likely to return to work. Can the employer end the contract and refuse to pay notice on the basis that the employee is not able to perform his/her side of the contract? Generally no.

When an unforeseen circumstance such as injury or sickness makes an employee’s job performance impossible for an extended period of time it is called Frustration of Contract. However, whether a contract is really frustrated which would allow the employer not to pay notice is open to interpretation.

Here are some of the tests the courts apply to determine if the contract is really frustrated:

LENGTH OF THE ABSENCE – Courts are quite generous to employees and have often refused to end a contract even in situations where the employee has been off for years and the prognosis for a return to work is unclear.

NATURE OF THE POSITION – Some positions are so essential to a company that it is difficult, if not impossible, to keep it open or to fill temporarily. In such cases courts have been more inclined to call a contract frustrated.

SIZE OF THE COMPANY – Companies with larger workforces can often juggle staffing so a finding of frustration is less likely.

DISABILITY COVERAGE – Companies which have long term disability benefits have had a harder time getting courts to agree that a contract has been frustrated as the courts point to the coverage as an indication that the company contemplated long absences by employees.


The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to employment lawyer, Shelley Brian Brown.

They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website or blog as such.

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