What's required if employer has specified number of sick days to use?
Question: If employees are given a specific amount of sick days to use each year, can the employer request a doctor’s note when the employee is still within her allotment of sick days?
Answer: When an employee takes sick leave, an employer is entitled to request that an employee provide a doctor’s note regardless of whether or not the employee is within her allotment of sick days. An employer is entitled to do so even in the absence of any specific management rule or clause in the collective agreement or employment contract.
Such a right is also expressly provided for in legislation. For example, in Saskatchewan, s. 2-47(1) of The Saskatchewan Employment Act provides as follows: “If an employment leave involves a medical issue and the employer so requires, the employee shall provide written evidence in the form of a certificate from a duly qualified medical practitioner as to the reason for the leave or the extension of the leave.
Generally, the employer is entitled to require all the information reasonably necessary to determine whether the illness or disability is bona fide and what impact it will have on the attendance of the employee. Such information includes the nature of the illness, the prognosis, if any, and the expected date of return if reasonably determinable. They are also generally entitled to know when the doctor was consulted and whether the employee was under the doctor’s care during her absence.
In Providence Care, Mental Health Services, the employee’s medical note, written on a prescription slip, stated, “The above patient was absent from work for medical reasons.” The arbitrator stated that “although most employers generally accept a simple ‘certificate’ like the one submitted by the grievor in this case, they are not obliged to do so.” He found the slip was patently deficient and that the employer was entitled to a description of the general nature of the illness or injury, without technical medical details, diagnosis or symptoms.
While an employer usually will not be entitled in the normal course to insist upon the particulars of a diagnosis or treatment, inquiries regarding the nature of the employee’s illness and type of treatment recommended are seen as being less invasive and are permissible where necessary for the employer to manage the workplace and to accommodate any medical limitations or restrictions.
Whether the information provided is sufficient will depend on the particular facts of each case. In some situations, the employer may be entitled to further information. An employer is entitled to make follow-up requests for further medical information. There is a continuum of appropriate medical information in which the obligation to provide more detailed medical information will increase, for example, as the length of the absence increases. It is generally recognized that a brief absence from work due to a common cold or flu will not justify the same degree of detailed medical information as may be appropriate in a case of a lengthy absence for a serious medical condition, particularly one which may involve workplace accommodations when the employee returns to work.
Cases of prospective medical leave differ from cases when the employer seeks to validate, after the fact, short-term period of absence due to illness. Requests for partial and extended medical leaves present unique circumstances which require the employer on a routine basis to consider a broader spectrum of medical information than may be required for standard cases of sick leave.
For more information see:
• Winnipeg Teachers’ Assn., Local 1 v. Winnipeg School Division No. 1, 1975 CarswellMan 65 (S.C.C.).
• Durham Catholic District School Board v. O.E.C.T.A., 1999 CarswellOnt 4560 (Ont. Arb.).
• Providence Care, Mental Health Services and OPSEU, Local 431 (Winton), Re, 2011 CarswellOnt 15998 (Ont. Arb.).
