With the passing of Bill 148, many Ontario employees and employers believe that an employer is never entitled to ask for a doctor’s note. But that is far from the truth.
Employers still have broad discretion to request doctor’s notes from employees, they simply need to be very carful in doing so, especially when that discretion is outlined in a workplace policy.
The circumstances in which an employer may request a doctor’s note depend on exactly how many days of Personal Emergency Leave (“PEL”) that the employee has used in the calendar year. Personal Emergency Leave is sick leave, but it can also be used for various other emergencies, such as the illness of a child, death of a family member, cancelled babysitter, etc. Theoretically, then, an employee could use all of his or her Personal Emergency Leave before taking a sick day, or vice-versa.
Given this interaction, when may an employee request a doctor’s note?
1) On the first or second PEL day of the year?
No. Under no circumstances may an employer request a doctor’s note to substantiate an employee’s first or second PEL day used in any calendar year, both of which are paid days.
2) On the third through tenth PEL day of the year?
Yes and no. No, in that employees are entitled to take the leave without providing a doctor’s note as evidence. Yes, in that these days are not paid leave. So, if your workplace has a policy of paying beyond the first two days of PEL in a calendar year, the pay may be made conditional on the provision of a doctor’s note.
3) On the first sick day of the year?
It depends on how many PEL days that employee has used for reasons other than illness in the calendar year. If the employee has taken 2 or more PEL days that year already, then employers may request a doctor’s note as a precondition to sick pay, but not to substantiate the absence. If the employee has taken 10 or more PEL days that year already, then employers may request a doctor’s note to substantiate the absence.
4) On the third consecutive sick day?
Close, but not quite. In the vast majority of cases, it will be acceptable to request a doctor’s note on the third consecutive sick day as a precondition to sick pay. However, this policy will still technically violate the ESA because an employee could conceivably use two paid PEL days on the last two work days of 2018 and then be entitled to two more for 2019.
5) What if the workplace policy requires doctor’s notes for all absences?
Many outdated policies allow the employer to request doctor’s notes for all absences due to illness. Employees are likely entitled to both personal emergency leave and the sick days outlined in that policy.