“Bosses shouldn’t ask sick workers for doctor’s notes: OMA”; that was the recent headline in the Toronto Star. The press release from the Ontario Media Association has prompted reactions ranging from confusion to controversy and outrage, and it has left employers wondering if they can ever require that an employee provide “sick notes”.
A full reading of the press release suggests that it should not be taken as a blanket prohibition on employers asking for doctors’ notes. It was made in the context of flu season; it begins “With the flu season in full swing…”, and references the highly contagious nature of the flu. The doctors legitimately point out that it is not in the public interest to force an individual with a highly contagious illness to drag themselves out of bed and into a medical office where they might infect many others.
During the recent public debate, some have been highly critical of employees that abuse sick days. Frankly, they should be; we have all heard stories of employees that call in sick and then head to the cottage for an early start to the long weekend. However, the vast majority of employees are honest, hard-working individuals that don’t take a sick day unless they need to. The law must balance the rights of those employees with the rights of employers that rely upon their staff to come to work.
Employers requiring doctors’ notes was an issue before the Supreme Court of Canada in the landmark case of Keays v. Honda Canada Inc. in 2008. I was fortunate to have been asked to represent the Human Resources Professionals Association (HRPA) when they sought to intervene in that case on this specific issue. As many will recall, the trial Judge in that case was highly critical of Honda’s requirement that Mr. Keays provide doctors’ notes to justify his absences from work. The wording of the trial decision suggested that requiring that an employee with a disability provide doctor’s notes was prima facie unlawful.
On behalf of the HRPA, I sought clarity from the Supreme Court. We put forward the position that not all of a disabled employee’s absences will be disability-related, and employers need to be able to identify those which are in order to accommodate them. Conversely, those absences which are unrelated to disability are not entitled to accommodation and should be treated in the same manner as absences of employees without disabilities. In other words, employers need to be able to understand the reason for an employee’s absence.
Our submissions included the following:
- Absenteeism results in substantial cost to employers.
- Absences from work that are not pre-authorized can be divided into two broad categories: 1) innocent or non-culpable absences (e.g., sick leaves, disability-related absences as a form of accommodation) and 2) blameworthy or culpable absences (e.g., unauthorized or unexplained absences due to factors within the employee’s control). Culpable absenteeism may be grounds for discipline, up to and including termination.
- Employers are not doctors and cannot necessarily assess the legitimacy of a medical absence on their own.
- Canadian arbitrators and courts have recognized the right of employers to establish bona fide measures to ensure employee’s regular attendance.
We did not ask for an oppressive rule that employers can always require medical documentation. However, as set out in our factum:
Rather than an absolute and over-inclusive rule, either always precluding or always permitting the requirement of doctors’ notes, [the requirement for doctors’ notes] should be based upon the specific circumstances of each case, so that there can be a proper balancing of the rights and duties of all parties involved.”
We were quite pleased that the Supreme Court confirmed that “the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and responsibility of the employer for the management of its workforce.” The court went on to hold that Honda’s doctors’ note requirement was part of its accommodation process, essentially allowing it to identify disability-related absences and exempt them from discipline.
Ultimately, every situation must be assessed based upon its own particular facts. The rights of both parties have to be respected. Employers should not be abusive or harass employees that require time off work. However, employers should also not unduly limit their rights. I have seen many organizations that have policies which provide that doctors’ notes will be required for “absences of 3 or more consecutive days”. As I often say, what about the employee that routinely calls in sick on summer Fridays before long weekends? Or the employee that is “suddenly” sick on a day that had been requested but denied as a day off for other reasons? I encourage employers to retain discretion to require doctors’ notes when they have legitimate suspicions regarding the veracity of an absence, but also not to be abusive toward employees where there is no reason to believe they are anything other than legitimately ill.
Stuart E. Rudner
Rudner MacDonald LLP
The Next Chapter in Employment Law
- Clarity on “exceptional circumstances” in reasonable notice - November 3, 2023
- The damage is done: Aggravated versus punitive damages in employment law - October 5, 2023
- New case on arbitration clauses - September 8, 2023