Will the return of Ontario’s sick note add complexities for employers?

As part of the Ontario government’s new bill amending the Employment Standards Act, it’s bringing back the option for employers to request a medical note from employees taking sick leave, family responsibility leave or bereavement leave.

As legislation currently stands, employers may require evidence classified as “reasonable in the circumstances” to prove an employee is eligible to take personal emergency leave. However, employers can’t require workers to provide a medical note from a qualified medical practitioner, though they can ask for a note from other health practitioners, such as dentists, physiotherapists, Chinese medicine practitioners, naturopaths or registered massage therapists if it’s reasonable in the circumstances.

Read: Ontario government unveils new labour standards bill

“Requiring ‘evidence reasonable in the circumstances,’ including sick notes, is an employer workforce and attendance management tool,” Sarah Letersky, director of communications at the Ontario ministry of economic development, job creation and trade, wrote to Benefits Canada in an email.

Arleen Huggins, a Toronto-based partner at Koskie Minsky LLP, has seen the issue from both the employee and employer side since the enactment of Bill 148, which barred notes in most cases. Huggins says there’s been a lot of questions from both sides about what’s required when an employee is sick.

“Usually this happens if they’ve been off for a few days,” says Huggins. “Most employers don’t ask you for anything if you’ve been off a day or so, right? It usually is sort of either a sequence of days off, so you’re off three or four days, or there’s a number of absences in a short period of time and there’s some reason for the employer to make inquiries.”

Read: Change to doctor’s notes signals new philosophy towards absence

Some employers don’t make inquiries at all, she adds. “And if that’s the case, that’s fine. But when there’s the reason to make inquiries or reason where the employee feels as if they have to satisfy some inquiry by the employer, they really don’t know what it is they’re supposed to provide other than a note from themselves saying, ‘I’m sick.’”

In that case, it was helpful under the previous legislation to have something specific that both employers and employees could reference in terms of required evidence, says Huggins.

“I certainly never heard any issues from my employee clients about providing a medical note when they’d been off for a number of days,” says Huggins. “They complained when they were off for a day and home sick with a cold, if an employer asked, because you don’t get up from your bed from a cold to go to the doctor’s office. But certainly if they’d been off three or four days or they’ve had an accident or something of that nature, they generally would go to the doctor and get a medical note and the doctor would fax it in.”

Read: What do Canadian provinces offer around sick, emergency leave?

The amendments to the bill include replacing 10 personal days, which included two paid days, with three days for sickness, three for family responsibility and two for bereavement, all of which are unpaid. This is where Huggins expects bigger issues with the Ontario government’s changes.

“The fact that they now get two paid was a bonus, but I think losing the leave altogether is going to be a real issue because there are many employees who are at workplaces that don’t have policies that talk about sick days,” she says. “They don’t have the ability to say, ‘I’ve got these 10 days, I know if I’m sick, if my kid’s sick, I’m not going to have a problem with my employer.’ Now we’re going to get into more of the human rights issue, right? ‘I’m sick, my employer is not letting me take sick leave, I’m going to file a human rights complaint.’”

Read: Just 53% of Canadian workers with severe symptoms call in sick: poll

With these changes in mind, does your workplace intend to bring the sick note back? Have your say in Benefits Canada‘s online poll here.

The previous online poll, which asked about pension plans’ dedication to responsible investing, saw a fairly even split. A third (33 per cent) of respondents said their plan was fully dedicated to responsible investment, 33 per cent said they haven’t looked into it but may and 33 per cent said they aren’t interested in responsible investment at all. Less than one per cent (which was too small to include in the infographic) said they’ve started to look into it but haven’t incorporated it yet.