The recent admission of a large number of new health professions to those recognized in the Ontario Regulated Health Professions Act, which governs who can provide medical services in Ontario, raises fresh questions for employers as to what they should do with medical documentation from health care or medical practitioners who are not traditional doctors. Must they be given the same weight as doctor’s notes or letters? Do they need to be given any consideration at all?
The expansion of regulated health and medical professionals
The Act lists 25 different professions, with another to be introduced in the near future at a yet-to-be-determined date. These professions run the gamut from traditional professions such as doctors and nurses to newly minted professions such as traditional Chinese medicine and homeopathy. They may involve the use of non-traditional methods for diagnosis in treatments, resulting in different conclusions from that of a doctor.
Do the opinions of these professionals carry much legal weight?
This issue has not been the subject of much case law to guide employers. Nonetheless, it is only a matter of time before this issue is litigated with more frequency given the increasing popularity of non-traditional medical and healing methods.
The traditional rule that an employee must provide reasonable medical documentation to support a medical leave of absence or accommodation request still stands. Although each case and note must be assessed individually, some basic questions can help determine whether a document from a medical practitioner who is not a doctor is sufficient:
- Does the document provide a prognosis or outline functional restrictions?
- Does the document indicate that the worker has been under the health professional’s care?
- Does the opinion fall within the expertise of that profession?
- Is the information in the document consistent with other information the employer has received?
In general, the weight to be given a medical note or letter, regardless of the type of professional giving it, will depend on the cogency of the information provided in the note, the rigour of the examination and the specialization of the medical professional.
The fact the note is from a doctor does not mean it cannot be questioned or even rejected by an employer. By the same token, a note from another medical or health practitioner should not be dismissed just because it is not from a doctor.
The specialization of the individual providing the note will be an important factor for employers to consider. This is particularly so when a note is provided by a professional working in an area with non-traditional diagnostic practices.
However, where the accommodation requested by an employee will involve some difficulty for the employer, it will usually be a good practice for the employer to seek an opinion from a doctor with a specialization in the type of condition an employee is seeking accommodation for to confirm the opinion of the alternative medical practitioner.
Employment Standards Act leaves
Unlike requests for accommodation of duties or hours or for general sick leaves, the Employment Standards Act specifically sets out the type of medical professional who can provide the documentation required to support the leave. They are as follows:
- Type of leave
- Family medical leave, organ donor leave
- Family caregiver, critically ill child care
- Type of medical practitioner
- Legally qualified medical practitioner
- Physician, registered nurse, psychologist
In these types of leaves, an employer is obligated to accept a note from the type of medical practitioner indicated so long as that note meets the requirements of the individual section. Conversely, an employer is not required to accept a note or letter from any other type of medical practitioner in relation to the above leaves.
In some other cases, medical notes may be necessary as well. For example, in order to receive personal emergency leave, an employee may be required to furnish evidence reasonable in the circumstances, which may involve a note from a medical professional who is not a doctor. Since this is not an explicit requirement, what is reasonable, and who may provide a note, will depend on the circumstances of each case.
To learn more about entitlements to leaves under the Employment/Labour Standards legislation and when to ask for a doctor’s note among other medical issues, consult The Human Resources Advisor, published by First Reference Inc. edited by Yosie Saint-Cyr, LLB, and reviewed by Stringer LLP.
- Ontario legislature passes Bill 186 – Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 – Job protection for workers due to COVID-19 - March 24, 2020
- A wrongful dismissal time warp – When is two years really six? - December 23, 2019
- Embracing the #MeToo movement - October 29, 2019