Do you still need a doctor's note if you're sick? What employers are allowed to ask

When do you need to ask for a doctor's note if you're sick? Experts explain what employees and employers need to know. (Pexels/SHVETS production)

When do you need to ask for a doctor's note if you're sick? Also, what is your boss allowed to ask when you need a temporary leave of absence due to your illness?

The amount of paid or unpaid leave a worker is entitled to depends on provincial or territorial rules and on what is outlined in an employee's contract.

For example, B.C. workers are entitled to five days of paid sick leave per year, while Ontario workers are entitled to three days of job-protected sick leave, but that time is unpaid. Individual employers may offer more than the provincial or territorial entitlement.

Regional requirements on doctor's notes or other proof of illness also vary.

Cissy Pau, principal consultant at Clear HR Consulting, says in B.C., employees in need of sick leave must provide sufficient proof of their illness or injury – and an employer can reasonably ask for that.

"Usually that could be a doctor's note, that could be something from a counsellor or therapist or a prescription from the pharmacy – that really depends on the nature of the illness," Pau said during an interview with CTVNews.ca on Tuesday.

If an employee requires an extended period away from work, like a couple of weeks or more, Pau encourages employers to ask for more clarification.

"You want to make sure that that person can return safely to work. Like if they had some sort of absence, you want to make sure you understand," Pau says. "Not the diagnosis – you don't need to know the nature of what the illness is, but you do need to know what impact that has on the person's ability to do their job."

However, employers can request information regarding their workers' prognosis, employment lawyer Fiona Martyn, from Samfiru Tumarkin in Toronto, notes. 

"It's fair for an employer to request information about some of the limitations associated with the disability, whether or not the person can perform the essential duties of the job, what type of accommodations they'll require to perform the essential duties of the job, how long they might be away for, when the person expects to come back to work. All that prognosis information is fair game," Martyn said.

Employers must accommodate – up to a point

There's a high legal threshold to meet for an employer to reject accommodations to workers who are ill, according to Martyn.

"It's difficult for an employer to say they can't accommodate an employee," Martyn said. "They can't just say, 'Oh, it's too expensive,' or 'Oh, this is inconvenient.' If the employer has the resources to accommodate, they have to accommodate."

What that sort of accommodation will be largely depends on the job and the type of disability, Martyn says, so it would vary on a case-by-case basis. The employer doesn't have to create a new position for the employee, but rather provide reasonable accommodation during that extended (and potentially indefinite) period of time, like working from home, or extended or more frequent breaks.

A business can request a Functional Abilities Form (FAF) from its employee. This form, completed by a health-care practitioner, outlines the employee's limitations and what activities they can perform at their workplace.

Martyn notes that an employer is only legally obligated to provide accommodations up to the point of undue hardship.

"If someone's hired as a truck driver and they suffer a leg injury and can no longer drive for the rest of their life, that would be what's known as a frustration of contract, meaning they can no longer perform the essential duties of the job that they were hired for," Martyn said.

When this happens in Ontario, Martyn says the term of employment will be treated as terminated and the employee will receive minimum severance pay legislation.

What if an employee's illness seems illegitimate?

An employer should never accuse employees of misusing sick days or paid time off.

"The worst thing you could possibly do is accuse someone of misusing something that they actually, genuinely need," Courtney Lee, vice-president of people and talent at Humi, an HR-software company, told CTVNews.ca. 

"My general guidance would be approach it very delicately, do it privately – like one-on-one with the employee – don't bring other people into it. It's best managed directly by the manager or in consultation with HR."

Lee adds that approaching the conversation from a place of trust and understanding is also key, as employees are not responsible for disclosing their personal medical details to their employer.

"You have to be really careful about how you position it and say, 'Look, you could share as much as you want to but I just need to understand. We're starting to see a significant portion of time off relative to what we would expect, help me understand what you need,'" Lee said.

If there are reasonable grounds to question the reliability of medical information, Martyn says an employer can request an Independent Medical Examination (IME), in which a health-care practitioner who doesn't have a prior relationship or connection with the employee can validate their level of disability or impairment.

"Oftentimes, once you say that, you're putting more of a box around the situation. It's not this free, 'OK, you can take two months off.' You now are asking for proof, and you're asking for the doctor to find their name to the restrictions and the situation," Pau adds.

The end of doctor's notes

"I think there's a trend toward not necessarily needing notes … doctors in different provinces are saying that's a big waste of a doctor's time, to make someone come into the office when they're sick, to then get everybody else sick, to just get a note that says, 'John is sick,'" Pau said, especially for short one- or two-day absences.

In April, the Ontario government proposed changes that would prevent workplaces from requiring sick notes for employees to take their entitled leave, as a means to free up the amount of hours doctors spend writing notes throughout the week. However, Martyn notes, employers can still request alternatives from their employees as proof of illness, such as receipts for over-the-counter medication or self-attestations.