Doctor's Notes Request by Employers May be Prohibited in Ontario

What is a Doctor’s Note?

Recent changes announced by the Ontario government to employment law will prohibit employers in the province from requiring employees to provide doctor’s notes to justify a medical leave of absence (or sick leave) from work.

Put simply, a doctor’s note (or medical note) is an official medical documentation provided by a doctor that states an employee is medically unwell and needs a certain amount of time off work.

Under the Employment Standards Act, 2000, employees in Ontario (those that are not unionized) have the right to take up to three (3) days of unpaid job-protected leave each calendar year due to a personal illness, injury or medical emergency. This is known as sick leave.

Employees are entitled to up to three (3) sick leave days per year once they have worked for an employer for at least two (2) consecutive weeks. An employee who missed part of a day to take the leave would be entitled to any wages they actually earned while working.

What Information is Included in a Doctor’s Note?

While your employer is not entitled to know your medical diagnosis, they can ask that your sick note contains information about:

the expected length of the employee’s illness or disability
the date the employee was seen by the doctor
whether or not the employee was examined in person by the doctor issuing the sick note

Can Employers in Ontario Force Employees to Provide a Doctor’s Note?

Generally, employees in Ontario have a right to privacy involving their medical information. However, it is permissible for an employer to be provided with more medical information if the employee:

cannot not show up to work because they are sick
requires workplace accommodation for their illness or disability illness, such as modified duties or schedule

In other words, employers in Ontario can ask or demand that an employee claiming they are suffering from an illness provide a doctor’s note from a registered health practitioner (e.g., doctor) if it is necessary and reasonable in the circumstances.

Specifically, an employer may require an employee to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist when the employee is taking the leave because of personal illness, injury or medical emergency if it is “reasonable in the circumstances”.

However, the employer can ask only for the following information:

the duration or expected duration of the absence
the date the employee was seen by a health care professional
whether the patient was examined in person by the health care professional issuing the note

Employers cannot ask for information about the diagnosis or treatment of the employee’s medical condition.

The medical information requested must also be connected to the employee’s job duties and the employer’s operations, and be relevant to the time period of a related absence (a request for past medical history is generally not allowed).

What if Employees Refuse to Provide Doctor’s Notes?

In some circumstances, an employee may be able to refuse providing their employer with a doctor’s note if the employer’s request is not reasonable. For example, if the employee was only absent from work for one day due to a medical appointment, an employer’s request for a doctor’s note would not be considered reasonable. On the other hand, an employer may be better able to justify a requesting doctor’s note if the employee is off work for several days or weeks.

Additionally, while an employer cannot legally force an employee to provide medical information, it may be more beneficial for an employee to provide a sick note if they are requesting workplace accommodation for a health issue or disability, or if they intend to rely on their job-protected leave of absence under the Ontario Employment Standards Act, 2000.

During a job-protected leave of absence (sick leave) supported by a doctor’s note is entitled to the same legal rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking a sick leave. If they do, an employee may be able to pursue a wrongful dismissal claim with the help of an Ontario wrongful dismissal lawyer, or a constructive dismissal claim with the help of an Ontario constructive dismissal lawyer, and in each case, negotiate a severance package

However, under new employment rules in Ontario, employers may be prohibited from requiring employees to provide doctor’s notes. Specifically, instead of doctor’s note, employers will have the option to use other resources for an employee to support job-protected sick leave, such as attestations, that will help maintain accountability as employees request time off sick.

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