Legal experts weigh in as Ontario, B.C. and Quebec overhaul documentation rules for employee illness
Employers across Canada are adjusting to new realities when it comes to handling sick leave — and, particularly, the documentation required to justify the absence.
Recent legislative changes in British Columbia, Quebec and Ontario place restrictions on when, and whether, a doctor’s note can be demanded for short-term absences.
These updates aim to reduce the burden on healthcare professionals and clarify workers’ rights around short-term sick leave.
But what will this mean for employers that are keen to comply — while maintaining a productive workforce? Two employment lawyers spoke with Canadian HR Reporter to offer insights.
“The issue of employees requiring time away for medical reasons is a common issue that arises for employers to contend with,” says Jessica Thomson, partner at Pulver Crawford Munroe in Victoria.
“I wouldn't say it's common that employees are abusing the provisions or circumstances in my experience, but what can arise is a lack of clarity and understanding around what issues are at play and how an employer can actually fulfill its duty to accommodate an employee.”
There's definitely confusion about when to start asking for doctor's notes, says Carson Healey, associate at Gowling in Toronto.
“If there's PTO offered in addition to these unpaid days, how does that work? Because there are protocols out there that say when someone's off, they need a doctor's note to come back. So definitely, those protocols have had to change.”
Flexibility first in B.C.
Currently, in British Columbia, workers with at least 90 days of employment are entitled to five paid and three unpaid sick days annually under employment standards. And employers have traditionally been able to ask for "reasonably sufficient proof" after three or more consecutive days of leave.
"In terms of how this term has been interpreted, it's a fairly broad interpretation, and it's any information that establishes or will help to establish that the employee's absence is due to injury or illness,” says Thomson.
“Employers are to be quite flexible in that regard and can include a whole host of different things. I mean, a hospital bracelet could do if the person was in hospital or perhaps receipt from a drug store.”
The note can come from a doctor, nurse practitioner, therapist or psychologist, for example, but “the request for medical documentation needs to be proportionate to the surrounding circumstances,” she says.
However, with B.C.’s new rules, employers will not be able to request a sick note from a physician or health care provider “in specified circumstances.” So, how will that be defined, exactly?
“Unfortunately, my answer to that is TBD, ‘to be determined’, because it’s really going to fall under the Regulations,” says Thomson, adding there will be consultations first.
“I'm sure counsel for employers, physicians, will be weighing in in terms of ultimate issues [such as] how many days are going to be considered a short-term absence, and often we're talking about consecutive days [and] how often an employee might be absent before an employer could request a formal sick note. Because if you just have single days but repeated patterns, that may also form the basis.”
Plus, clarification will be needed around who can provide the medical documentation, she says, adding that answers are expected in the next couple of months.
Ontario, Quebec: Doctor’s note not required
In Ontario, new rules that took effect on Oct. 28, 2024 ban employers from demanding medical notes for the province’s three annual ESA-protected sick days.
“Employers cannot require employees to provide a certificate from a qualified health practitioner to take a sick leave under the ESA,” said Healey. “[That’s] three unpaid days your employer has to give you per year... you don't need to give your employer a sick note, even if your employer demands it.”
As with other parts of Canada, restrictions to sick note requests are motivated by the burden on the medical community who don't want to spend their time writing these very basic notes.
“It's also, obviously, employee-friendly, because the employees don't have to hunt down these notes,” she says, adding it does seem “like a bit of a fruitless and time-consuming exercise.”
Quebec’s Bill 68, also passed in October 2024, and effective Jan. 1, 2025, bars employers from requiring medical notes for the first three short-term absences (three days or less) per year. Other provinces, such as Nova Scotia, have had restrictions on the books for longer — while Alberta, Saskatchewan and Manitoba have no such bans.
Requesting medical information
Both Thomson and Healey acknowledge that when illnesses are more frequent or prolonged, employers may still seek more comprehensive documentation — particularly to meet human rights accommodation obligations.
“Usually, we're looking to be sure that the employee is fit to return to work, for example, and/or whether they have any limitations and restrictions on their ability to work so that we can accommodate them in accordance with human rights legislation,” says Thomson.
And it's important that any requests for medical information are handled carefully, in accordance with the relevant privacy legislation, she says.
“One of the key issues there is to ensure that the employee is consenting to the disclosure of any sort of details with respect to their personal information that might be provided to the physician.”
The employer should make sure it has parameters around the preservation of the confidentiality of that information, says Thomson, by ensuring that “access to their personnel files and things like that are carefully maintained and on a need-to-know basis.”
Detailed medical information
When medical notes are vague, especially in accommodation cases, employers shouldn’t hesitate to ask for more, say both lawyers.
“If an FAF [Functional Abilities Form] comes back and it is not terribly instructive in terms of understanding how this person can be accommodated.... a dialogue is important,” says Healey, acknowledging that this can be a challenge.
“There's nothing wrong with sending it back with some additional questions, with… an up-to-date job description.”
That’s because, in most cases, the doctor has a limited sense of this person's job — apart from the employee themself., she says.
“That might not be the full picture, and that might not encompass everything the employer may be able to do in terms of adjusting the job duties based on what they do know about the accommodations.”
How to handle suspected abuse
If an employer has concerns about suspicious behaviour — such as frequent sick leaves on Fridays — it could mention that it's noticed this pattern in its request for more information from the physician, says Thomson.
“Perhaps the physician can explain why that's the case, and there may be an explanation, but that might also assist the physician in telling the employee: ‘No, actually... I'm not going to write a medical note now, having seen this pattern.’”
If there are concerns, the employer would be well-served to remain neutral on its position, she says, “so, not to confirm or prove the request, but to say that ‘further information is required,’ and to be clear with the employee what that information is, so that they can go and canvas that information with their physician.”
Denying a sick leave request
If the information is not forthcoming or doesn't support the leave, then there may be a basis to consider denying the request, says Thomson, “but there are a number of illegal issues that can arise from that, and it's very fact-dependent. So, getting some advice in those instances would be wise.”
A denial should be carefully considered based on “informed details… because that denial may be discriminatory if, in fact, the employee's request is legitimately supported by medical information,” she says.
Before a denial is made, an employer wants to be sure that they have a full understanding of the basis for the request and whether there is a need to comply with human rights legislation, says Thomson.
“If the employee has a medical concern and requires a leave of absence, and that's supported by medical information, then a denial could be discriminatory.”
Progressive discipline possible
If there is an insincere use of time, progressive discipline is a possible response, says Healey.
“Now that can be risky — if the person is genuinely sick and for whatever reason... there's no doctor available, or the doctor doesn't get back to you on a timeline that would be reasonable, you don't want to be hasty with that sort of thing.”
But if attendance becomes an issue, the employer can state that this is not acceptable — but it wants to understand if there are any accommodations needed, she says.
“And if someone is not ... participating in that, the employer doesn't have a lot of options. They certainly don't have the duty to just keep things as they are forever, regardless. So, there is a possibility of progressive discipline in those circumstances.”
This is also important because if an employer is too forgiving with this kind of abuse and doesn’t do anything when it first detects the issue, says Healey, “that makes it harder to later on say, ‘We don't think this relationship is working out’ because it's condonation — they've let it fly for so long.”
