Absenteeism Due To Disability: Has Frustration Of Contract Occurred?

Accommodating the extended absence of an employee who is off work due to illness or disability can be a difficult task for employers.  If the absences relate to an underlying disability, the question becomes - can the employer legally terminate the employee without running afoul of human rights legislation or providing reasonable notice of termination (or pay in lieu thereof)?

When an employee is unable to fulfill the required employment duties as a result of a disability, the legal principle of contract frustration may apply.  Frustration arises when it is impossible for one of the parties to fulfill the terms of a contract.  However, it is often difficult to determine at what point frustration occurs.