Doctor’s Notes: When Should An Employer Ask For One?

In British Columbia, the short answer to these questions is that, an employer may, at its discretion, ask for a doctor’s note to ascertain the reasons provided by the employee to support a request for leave and/or to determine an employee’s specific functional limitations, except with respect to COVID-19-related leave as discussed below. There is no specific number of days of absence that must pass before a doctor’s note may be requested.

However, in some workplaces, collective agreement provisions or other contractual terms may further restrict an employer’s right to require a doctor’s note.

As of March 23, 2020, employees who have been employed with the employer for at least 90 consecutive days are now entitled to up to three days of unpaid leave per year under the Employment Standards Act for personal illness or injury, in addition to five days of paid leave. Employers are entitled to reasonable proof, after the event, that the request for a leave was valid.

Also as of March 23, 2020, employees may be eligible for COVID-19-related leave under the Employment Standards Act if they meet certain specific criteria related to COVID-19 diagnosis, quarantine or self-isolation, or the provision of care to an eligible person, among other circumstances. An employee is entitled to the leave for as long as the circumstances making the employee eligible for the leave continue to apply. An employer cannot request a doctor’s note for this type of leave. The availability of this leave is expected to be a temporary measure that will be repealed when the COVID-19 pandemic is over.

Employers may choose to provide “sick leave” to their employees above and beyond what is required by the Employment Standards Act. Employers choosing to do so are advised to set out an appropriate sick-leave policy for the organization and then work to develop, communicate and consistently apply that policy. The policy should outline what is expected from an employee in relation to absence due to illness – both short- and long-term – and the associated requirements (if any) for a doctor’s note.

At the same time, you should ask yourself what type of culture you want to support and promote with your policy. Consider what makes sense for your organization and your employees and then build your policy from there. Be mindful and appreciative of the fact that infrequent employee absences are a normal part of life. It is the frequent or long-term absences that have the most impact on your organization and other employees; these should be your focus when developing your sick leave policy – including the process of requesting doctor’s notes.

A policy that is too prescriptive can certainly be detrimental to employee morale. As opposed to having a policy that requires a sick note after every illness lasting a certain number of days, an alternative might be to state that the organization “reserves the right” to require notes when absenteeism is an issue. This gives you the ability to treat your employees like the adults you hired, while allowing the flexibility to be more regulating when dealing with employees who are calling in sick on a regular basis, or those who are away for extended periods of time. That said, while this type of policy might work well for some employers, there are others who will benefit from the consistency of a process that requires a doctor’s note for absences longer than three days. The goal is to determine what will work best for your organization and then move forward to create a policy that is consistently applied.

In a unionized environment, it is common for the matter of sick-leave eligibility and the employer’s right to medical information to be specifically addressed in contractual terms. Where a collective agreement is in place, it is always prudent to carefully review its provisions to determine if, when and to what extent the employer can require disclosure of medical information.

One final note: When seeking medical information, do not be dissuaded by doctors who resist such requests or suggest you are wasting their time. Asking for verification of an employee’s illness, based on your organization’s sick-leave policy or the need to manage absenteeism, is generally a legitimate request. It is part of your responsibility as a manager or small business owner. Further, doctors in BC have a positive, professional duty to cooperate with employer requests for medical information. This duty, and some very helpful guidance to doctors on how to respond to employer requests for medical information, is set out in a Professional Standards and Guidelines document produced by the College of Physicians and Surgeons of BC, titled Medical Certificates and Other Third Party Reports.

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