Doctor’s notes: When should an employer ask for one?

January 14, 2014 Doug MacLeod, MacLeod Law Firm Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation

Q: When can an employer ask for a doctor’s note?

An employer can ask for a medical note in two circumstances.

One is when an employee says she was absent from work because of illness. The other is when an employee is on a sick leave and wants to return to work.

The Ontario Medical Association (OMA) position on asking for doctor’s notes

The President of the OMA, Scott Wooder, recently suggested that employers stop requiring employees to get a doctors note if they are sick. For reasons set out below, I disagree with Mr. Wooder.

Q: Is an employer required to provide paid sick leave?

Employers are not generally legally required to pay an employee when the employee is sick and unable to work.

Many employers however decide to pay sick pay. In some organizations, a salaried employee receives her regular salary whether or not she is sick. Some employers have a sick leave policy which states that each employee is allowed to use a prescribed number of paid sick days each year. Some employers have short-term disability plans.

In these scenarios, the question becomes: Is there a limit on the amount of paid sick leave an employee can receive?

Q: How much paid sick leave do employers offer?

If an employer has a sick credit policy then the policy usually prescribes the employee’s maximum entitlement. It is up to each employer to decide on the maximum entitlement. In my experience, most non-union employers offer between three and six days per year. In many unionized workplaces, the collective agreement provides for between 12 and 18 days per year.

An approach to deciding when to ask for a doctor’s note

Does the employee have to prove she has been sick before receiving sick pay? Unless the employer has a policy saying otherwise, an employer can generally require a doctor’s note before paying sick pay.

In some policies (or collective agreements) the employer only requires an employee to obtain a doctor’s note if the employee is absent for three consecutive days. I do not agree with this kind of requirement.

Instead, I recommend that an employer have the express right to require an employee to provide a satisfactory medical note for an absence of ANY duration. This does not mean an employee is required to provide a note in every situation; only when requested.

For most one day absences—especially during flu season—most employers will apply common sense and not require a doctor’s note but this could change if there are suspicious circumstances surrounding an absence.

For example, if an employee has a pattern of calling in sick on the Friday of a long weekend and does so during flu season then the employer may decide to ask for a doctor’s note. Similarly, if an employee calls in sick and according to his Facebook posts had a busy day then the employer may ask for a medical note.

Doug MacLeod
MacLeod Law Firm: Employment & Labour Lawyers
doug@macleodlawfirm.ca

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Doug MacLeod, MacLeod Law Firm

Employment and labour lawyer at MacLeod Law Firm

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca. Read more