When suspicions arise over an employee's absence
Question: If an employer is concerned an employee’s doctor is simply filling out notes to cover for absences even if the employee isn’t really sick, can the employer refuse to accept the note, even if it’s a legitimate doctor’s note?
Answer: Theoretically, an employer may refuse a medical note that does not provide sufficient detail concerning the reason for absence. Past cases have even held that an employee’s failure to comply with an employer’s reasonable direction to produce doctor’s notes justifying prolonged absences amounted to just cause for dismissal. This line of reasoning, however, comes with a few caveats.
Firstly, it must be reasonable for the employer to refuse a doctor’s note in the circumstances. In order to regulate employee attendance, employers generally have the discretion to request a more detailed medical certificate if they feel a doctor’s note is insufficient or just covering up an employee’s long term absence. Conversely, an employer who relentlessly harasses an employee for further doctors’ notes in every instance of illness or absence for a brief time may be viewed as acting unreasonably in court.
Unreasonable refusals, particularly where the employer was aware of a past history of illness but chose to ignore it, can lead to messy situations should the decision be later challenged in front of an adjudicator. Furthermore, employers must be aware of employee rights under the Occupational Health and Safety Act to refuse “unsafe work,” which can include refusing to work where a communicable disease, such as the flu, is present in the workplace, or being compelled to work where they are unfit to do so. Thus if your employee who seems to be skipping out on work actually turns out to be ill when called in, you may be creating an even larger mess by providing a basis for them, or other coworkers concerned about falling ill, to refuse work.
An employer must also be mindful of the human rights considerations that come into play in these situations. Employers have a duty to accommodate disabilities, which may include illnesses causing long-term absences, up to the point of undue hardship. Accommodation, however, does not necessarily require time off. While an employee may assume they are entitled to be “off sick”, an employer is entitled to understand the need for accommodation and assess whether other forms of accommodation, such as modified hours or duties, are reasonable. For example, an employee with a broken leg is not entitled to decide that they will stay home. However, if their job involves physical activity, some accommodation will likely be appropriate.
With all of the above in mind, the best course of action in this scenario would be to ask the employee’s healthcare provider for additional information regarding the specific limitations upon her ability to carry out her job function. The employer is not entitled to a diagnosis or other medical information, but is entitled to this information in order to assess the employee’s ability to do his job. And an employee cannot simultaneously demand accommodation while refusing reasonable requests for such information.
