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Providing a doctor’s note – eventually

How long should employers have to wait for a doctor’s note?

By Jeffrey R. Smith

It’s a fact of life — people get sick.

Depending on the workplace, temporary absences due to illness might be easily absorbed by existing staff or the employer might have to scramble to cover the absence. Either way, employers want to avoid situations where employees are abusing sick days.

Some employers take the approach of having a specified amount of sick days per year and, if an employee exceeds that allotment, the employee might be given a warning or be required to provide a doctor’s note for any more absences. Others might have an open-ended amount of sick days, but would still warn the employee if she accumulated too many sick days.

Employment standards legislation in some jurisdictions provides unpaid emergency leave that can be allowed for illness, but may require an employee to back it up with a doctor’s note. For example, Ontario’s Employment Standards Act, 2000, stipulates personal emergency leave can be used for “personal illness, injury or medical emergency,” if the employee provides documentation.

But how long should an employer wait before an employee provides a doctor’s note backing up an absence? Last year, an Ontario employer dismissed an employee who exceeded the employer’s absence allowance of 10 per cent of scheduled shifts for absences unsupported by a doctor’s note. However, the employee’s last absence was because of a headache for which he sought a doctor’s treatment. He obtained a note and was going to provide it on his next scheduled shift two weeks later, but the employer fired him before that shift. After some cancelled grievance meetings, the employee finally provided the note four months later, but the employer said it was too late.

An arbitrator agreed the employee should have handed in the note sooner, but found the note proved the absence was for a personal illness, which qualified it as personal emergency leave under Ontario’s employment standards legislation. As a result, the last absence shouldn’t have been counted under the employer’s 10 per cent absence threshold and ordered the employer to reinstate the employee.

It makes sense that if the employee had proof his last absence was for a legitimate medical issue, he shouldn’t be penalized for it. However, even though he was dismissed before he could hand in the note, he could have provided it at any time. Four months seems like a long time for the employer to wait for it. By that point, the employer has likely moved on and perhaps made staffing decisions based on the termination. Should an employer be expected to accept a doctor’s note such a long time after an absence? What is the threshold for the amount of time an employer should accept such documentation?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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18 Comments
  • 10 sick days exceeded
    Wednesday, May 16, 2018 4:21:00 PM by Jeffrey R. Smith
    Employers cannot fire an employee if the employee's disability is a factor without trying to accommodate. A bad back could be considered a disability, depending on the circumstances, and a large number of sick days used could warrant an inquiry as to why. Accommodation could involve modified work duties, or a stint on short-term or long-term disability. Dismissal could come if reasonable accommodation options have been exhausted and the employee is unable to do his job, but this can usually only be established after a period of time has elapsed and there is no prospect of the employee returning to work (frustration of the employment contract).
    On the other hand, an employer can dismiss an employee without cause at any time, but must provide reasonable notice or pay in lieu of. In the case of a 15-year employee, that would likely amount to more than one year's notice (or pay). Of course every case turns on its own facts.
  • Sick days 3 a year
    Wednesday, March 21, 2018 3:08:00 PM by Jeffrey R. Smith
    Please see the previous comment on non-culpable absences, dismissal, and discipline.
  • sick day limit
    Wednesday, September 7, 2016 9:52:00 AM by Jeffrey R. Smith
    Every case turns on its own facts, so if you're worried about your situation and feel your job is unfairly in danger, you should consult a legal professional.

    Breaching a sick day limit because of non-culpable absenteeism is unlikely to be just cause for dismissal unless the employer can prove it seriously damaged the employment relationship. Generally, some other form of discipline would be in order before resorting to dismissal, unless the employee has a history of chronic absenteeism. In addition, if doctor's notes have been provided, the employer will have to be able to prove it couldn't accommodate the absences without undue hardship.

    If short-term disability benefits are available, some employers require employees who accumulate a certain number of sick days to go on such benefits, so sick days aren't used up.
  • Employer told me to go on short term disability
    Thursday, December 3, 2015 9:38:00 AM by Jeffrey R. Smith
    If it's company policy that short-term disability kicks in after five consecutive sick days and employees are made aware of the policy, then the employer has the right to implement it. If an employer decides to dismiss an employee who is on disability leave and the disability factors into the decision, then it could be discrimination and the dismissed employee could seek legal action.