Ontario and Quebec Bans on Requiring Employees to Provide Doctor’s Notes

Ontario, Quebec and, according to the NDP’s election platform, BC will soon be banning employers from asking for doctor’s notes to justify sick time off. This change is largely driven by the shortage of doctors and attempts by provincial governments to reduce unnecessary doctor’s visits and related paperwork to free doctor time up to see more patients. However, this change poses challenges for employers who have long relied on a doctor’s note to verify illness and guard against abuse of sick time, particularly  when paid.

This Alert will briefly review the traditional rationale for requiring sick notes, discuss the anticipated scope and impact of these amendments and then suggest alternative measures to verify sick time.

Why Employers Ask for Sick Notes

Historically many employers have asked for doctors’ notes to verify sickness on the following premises:

1. To set a modest hurdle for the employee tempted to falsely call in sick by forcing the employee to arrange and attend a doctor’s visit; and
2. Most importantly, it was expected that the doctor would exercise some judgment and, if not convinced the employee was really sick, not sign the note (i.e. “gatekeeping”).

When this practise started, most employees (but not all) had a GP and were able to get in to see them more easily. The GPs used to scribble out a note or sign a form confirming the employee was ill on the spot and without charge. In reality, most doctors today say that, when an employee asks for a sick note, they almost invariably sign it as they do not wish to second-guess their patient and because they see the leave as supportive of patient wellbeing.

Furthermore, the assumption that every sick employee can get prompt access to a doctor to provide a sick note is clearly no longer the case, with upwards of 15 to 20% of the population lacking a GP and those with a doctor facing delays getting in to see that doctor for non-emergencies.

Why Governments Want Doctors to Stop Issuing Sick Notes

With a chronic shortage of doctors and doctors complaining they spend almost 40% of their time on administrative tasks, including seeing sick employees and issuing sick notes, provincial governments are pushing to free up doctor time from those tasks. Sick notes are an obvious target. Furthermore, it makes no sense for employees suffering from a minor or transitory illness like the flu to be clogging up busy doctors’ offices.

Scope of Bans

While the wording of the bans vary, they generally outlaw a policy or consistent practise of requiring doctors notes for either:

1. Ontario, effective October 28, 2024: only for the 3 annual protected sick days under Employment Standards;
2. Quebec, effective January 1, 2025: for the first 3 periods of sick time of 3 consecutive work days or less in each year.

B.C. has yet to announce its rules.

Quebec’s specifically allows for requiring a doctor’s note when reasonable to suspect abuse. Neither ban prevents employers asking for more detailed medical questionnaires for employees off on longer sick/disability leaves or who have pattern absences for illness.

Resetting Your Sick Time Verification Procedures

Especially in workplaces where employees receive sick pay or disability benefits for sick days, most employers will still want to have a process for verifying illness or injury. Here are a few key suggestions for updating your sick verification policy anywhere in Canada:

1. Start by assessing the overall level of absenteeism and perceived extent of misuse. If you are a small employer with low sick time and trustworthy employees, maybe you do not need a policy or verification procedure at all;
2. For the majority who will want to have the right to require verification, considering substituting an employee written formal certification of illness. But remember, staying in regular contact with employees by phone is the most effective way to deter abuse and better understand the cause and scope of absence(s);
3. Substitute a signed employee sick certificate for doctors’ notes. These can ask about residual limitations on function at work which may require accommodation of the job, prognosis for return to work or relapse etc. but avoid requiring details of the medical condition for privacy reasons;
4. Consider asking for other documentary proof of illness such receipts for medication or therapy, when applicable;
5. Make sure to reserve the right to require more detailed medical evidence from a doctor where there are:
   • Reasonable grounds to suspect abuse e.g. the “sick” employee posts photos on social media of himself partying the day he called in sick;
   • Repeated sick absences above normal range, particularly with suspicious timing (see example above re sick days following long weekends); or
   • Longer absences.
6. Review your sick pay policy and ensure it is not overly generous (e.g. paying 100% of wages for more than a few days) to reduce the incentive for an employee to abuse sick pay;

In closing, a reminder that while abuse of sick pay is serious misconduct and potentially grounds for termination, the courts and tribunals place the burden of proving abuse on the employer.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:       ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:         schern@howardlaw.ca

604 424-9688