Do recent changes to the law bar employers from asking for a doctor’s note? If you are an employee, small employer or manager who’s heard that you just can’t ask for a doctor’s note anymore, you’re not alone. But, you probably haven’t got all the information.
2019 NOTE: RECENT AMENDMENTS HAVE REVERSED MANY 2018 ESA AMENDMENTS. CONSULT THE CURRENT ESA OR AN EMPLOYMENT LAWYER TO ENSURE YOU HAVE CURRENT INFORMATION ABOUT THE LAW.
Amendments to the Ontario Employment Standards Act do significantly limit an employer’s right to ask for a doctor’s note. Ontario employees are entitled to a minimum of 10 personal emergency days or sick days. And they now have the right to be paid for their first 2 days off sick. In 2018, the Ontario government introduced a ban on asking for doctor’s notes to support these absences.
Previously, many employers had a blanket policy requiring a note for any sick day taken. Unsurprisingly, lots of doctors, employees and unions criticized these policies. Sending a worker to the doctor for a note when they just had the flu or a migraine wasn’t an efficient use of public health resources. In addition, it risked exposing workers or other patients to more germs in the waiting room.
Fear of discipline or dismissal due to an inability to produce a note after every sick day encouraged many employees to go to work despite their symptoms. Proponents of the bill pointed to productivity loss and spread of germs in the workplace as good reasons to reign-in requests for sick notes.
On top of these health system concerns, workers were often unable to see their regular doctor’s quickly enough to satisfy their employers- or before their illness passed. This meant doctors notes couldn’t truly speak to the employee’s symptoms at the time of their day off.
Some unionized companies had already started to request doctors notes only in extenuating circumstances. For example, many unionized employees could be required to produce a note if their sick day habits were suspicious (think: taking the Friday off before every long week). Generally, unionized employees could count on not needing a doctor’s note for occasional absences.
Not Your Doctor‘s Notes
The Act preserves an employer’s right to ask for other evidence that an employee needed a sick day. These requests for proof must be reasonable in the circumstances. The Act specifically singles out just doctors’, nurses’ and psychologists’ notes (for now). So, it’s possible that the Ministry would permit an employer to request notes from other relevant professionals. Since personal emergency days can be taken for other reasons )like to care for a child on a snow day) employees should be prepared to provide proof for their non-medical emergencies.
Not Your Doctor’s Note
The no medical note rule just applies to personal emergency leave. An employer can still request medical notes or certificates to support a request for other types of leave. For example, Family Caregiver, Family Medical or Critical Illness leave requests could result in a demand for a doctor’s note. This information isn’t about the employee’s health though. These leaves are provided to workers who need time off to care for some one else.
Contrary to what you may have heard, the new law doesn’t mean an employer can never ask for medical information.
Employers who provide more than the minimum number of sick days might be able to make reasonable requests for doctor’s notes to support time off beyond the 10-day minimum. Likewise, employers who offer short-term or long-term disability benefits will still be entitled to proof of eligibility.
Plus, employers can still ask for medical support in response to a request for accommodation. Employees are entitled to be reasonably accommodated in respect of workplace injuries and disabilities, up to the point of undue hardship. An employer can ask for a doctor’s opinion about what type of accommodation is appropriate to help a disabled employee perform their job. Information about your physical or mental health abilities or restrictions can be relevant to this assessment. However, employers generally can’t ask you or your doctor to identify your specific diagnosis. It’s still up to you to decide whether you wish to share your diagnosis or keep it private.
Where do we go from here?
Neither employers nor employees should assume that a request for medical evidence is inherently illegal. However, employers with old policies requiring doctor’s notes for brief illnesses will need to re-visit these practices. When in doubt, review the Act carefully or call an employment lawyer for guidance.
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