A New Chapter in Ontario’s Doctor’s Note Debate

Written on behalf of Peter McSherry

Once upon a time, if an employee woke up feeling under the weather, they would call their place of employment and let them know they would be taking a sick day, and that would be the end of the matter. Of course, this presumes the employee had not used all of their paid or unpaid sick days for the year. The point is, the employer would accept the employee’s explanation at face value and that would be the end of the matter.

However, there was always the chance that employees could take advantage of the system, and ‘call in sick’ in order to get an additional paid vacation day. In fact, this most certainly happened. Most employees know at least one person who has done this, and some may even know people who don’t want to ‘waste’ a sick day on staying home sick. Instead, some people may work through mild illnesses in order to ‘save’ a sick day for something more enjoyable.

This behaviour eventually prompted some employers to begin requesting a doctor’s note from any employee who claimed they were too sick to work. On the one hand, a doctor’s note serves as validation of an employee’s claim, backing their position and reassuring an employer that the request was valid. On the other hand, requiring a doctor’s note places a number of obligations on an employee, who in theory is ill, to spend their recuperation time driving around town, potentially infecting others, trying to find a doctor who will see them on a same-day basis. In addition, doctors began to be inundated by patients just looking for a note to validate a claim of a stomach bug, or a migraine, taking time away from patients who needed actual care or prescriptions. As a result, doctors began to charge patients for these notes, placing an additional burden on the employee to pay out of pocket.

Bill 148: Employers No Longer Allowed to Request Doctor’s Note

On January 1, 2018, Bill 148 (the Fair Workplaces, Better Jobs Act, 2017) came into effect and amended parts of the Employment Standards Act, which governs much of the employer/employee relationship in Ontario. Specifically, Bill 148 entitled every employee to 10 personal emergency days per year, with the first two being paid. In order to qualify for these days, an employee must have been with their employer for at least one week.

Additionally, the Bill restricted the rights of an employer to demand a doctor’s note from an employee requesting a sick day. An employer was permitted to ask for one, but could not deny the leave if the employee refused. In theory, this would prevent an employee who was too sick to leave their home from having to attend a doctor’s office to request a note. For those suffering from something like a migraine, which can make a person extremely sensitive to light, or a stomach bug, travelling outside the home under those conditions is far from practical.

Bill 47: Doctor’s Notes Once Again on the Table

One year to the day that Bill 148 came into effect, Bill 47 (the Making Ontario Open for Business Act) repealed and replaced several aspects of Bill 148. Pertinent to this discussion, the 10 days of personal emergency leave (included 2 paid days) were repealed and replaced with three separate leaves, all of which are unpaid. The leaves are as follows:

• sick days (up to 3 per year)
• family responsibility leave (up to 3 days per year)
• bereavement leave (up to 2 days per year)

The time an employee must have been with their employer in order to qualify for these leaves was doubled, from one week to two. In addition, the restrictions on an employer’s ability to demand a doctor’s note were removed, once again enabling employers to require a note from any employee requesting a sick day.

In the months leading up to the new rules coming into effect, the Canadian Medical Association conducted a poll to determine what effects these changes might have on employees. Among the key findings were the fact that the majority of working Canadians opposed an employer’s right to demand a note for a minor illness. Further, 80% of Ontario respondents said they would attend work while sick if their employer required a note in order for them to stay home. This raises the possibility of increased infection if a contagious person attends work while sick.

Sick Notes Temporarily Suspended Due to COVID-19

Among the many changes to Ontario employment law during the ongoing health crisis is the temporary restriction on employers, preventing them from demanding a sick note for employees who need to stay home. This has been done primarily to allow an employee who is showing symptoms of COVID-19 to stay home from work while reducing the chances of spreading the infection to others by attending their doctor’s office. This measure would presumably be lifted once the threat of infection is eliminated, likely once a reliable and safe vaccine is introduced.

Bill Banning Sick Notes Proposed in Ontario

This brings us to the present-day, and a new Bill proposed by Guelph MPP and the leader of Ontario’s Green Party, Mike Schreiner. The Bill would see the law in Ontario changed permanently, beyond a time when the threat of COVID-19 is effectively reduced or eliminated, to ban the requirement of a doctor’s note in Ontario. According to Schreiner, this would not only relieve Ontario workers from the burden of getting a note while sick (or attending work while sick), it would also be a help to medical professionals in Ontario:

“I’m hearing from workers, but I’m also hearing from health-care professionals that requiring sick notes makes absolutely no sense anytime…Why would you require people who are sick to go to a doctor’s office, potentially getting other people sick, simply for an administrative requirement to get a sick note…If we’re going to call frontline workers heroes, let’s treat them with respect, treat them like heroes and permanently eliminate the need for sick notes, which will keep everyone safer.”

While the Bill has just been introduced, we’ll continue to monitor its progress and will provide updates as they become available.

As evidenced above, the laws around sick leave and employee rights and obligations have changed several times in recent years. It can be difficult to know what the current laws require.

If you have questions about your rights as an employee with respect to sick leave, contact the offices of Guelph employment lawyer Peter McSherry. We will ensure you understand your obligations and help you determine whether you may have a claim due to a violation of your rights by your employer. Contact us online or by phone at 519-821-5465 to schedule a consultation.