Ontario’s employment standards changes eliminate the right for employers to request doctor’s notes, but it remains to be seen how this will affect accommodation efforts
The tabling this year of The Fair Workplaces, Better Jobs Act, 2017 (Bill 148) by the Ontario legislature has been the talk of the town during the summer months for employers of all sizes and industries in Ontario. With the sweeping changes proposed in the legislation, which is an attempt to modernize Ontario’s Employment Standards Act, 2000 and the Labour Relations Act, 1995, and the accelerated pace to pass the legislation, all provincially regulated employers will be impacted in some manner — and depending on the nature of their business, some more than others.
Along with well-publicized changes to the minimum wage and vacation entitlement, among others, Bill 148 also expands entitlement to Personal Emergency Leave (PEL) — currently granted to employees of companies with 50 or more employees — to organizations of all sizes. While the entitlement will remain at 10 days, two of those PEL days must now be paid. The paid days must be applied before the unpaid days. Currently, PEL is available to qualifying employees experiencing illness, injury or a medical emergency; the death, illness, injury or medical emergency of certain family members; and urgent matters related to certain family members. Those grounds will be expanded under Bill 148 to include domestic or sexual violence, or the threat of domestic or sexual violence.
While organizations will still be able to request evidence of entitlement to PEL, they are not permitted to require a medical note as evidence of entitlement to PEL from an employee taking any of the 10 PEL days.
When he announced the new measure at a press conference in June, Ontario Health Minister Eric Hoskins made it clear that he felt sick notes are an outdated tool for holding employees accountable.
“The value of the sick note is really limited,” Hoskins told the media. “What it has created is a situation where people should be home sick getting better, it brings them into doctor’s offices and into reception areas where they infect other people. And it keeps them from getting well faster.”
“It’s not up to the health-care system to play the role of policeman,” he added. “The employer should deal directly with the employee if they’re concerned that, perhaps, there’s something untoward happening.”
Hoskins’ perspective has been part of a larger debate on the merits of requesting sick notes from employees to substantiate absences. Employers have frequently refuted Hoskins’ perspective, citing medical notes as being an effective tool for managing attendance, particularly with employees who have a history of excessive absenteeism. We have seen that absenteeism not only creates a major staffing issue, but has direct cost consequences to organizations in the form of lost revenue and employee productivity. Where excessive absenteeism is concerned, we have often advised employers that frequent and consistent requests for medical information curb potential abuse of sick leave entitlement.
Sick notes vs. accommodation documentation
While the discussion on Bill 148’s prohibition of sick notes has focused on the impact on an employer’s ability to manage abuse of sick leave entitlement and the rising costs of absenteeism, the proposed legislative amendment could present another challenge for employers as it relates to the duty to accommodate. Under the Ontario Human Rights Code, employers are required to accommodate employees with a disability up to the point of undue hardship. As part of the accommodation obligation, employers are permitted to ask for, and employees are required to provide, medical documentation to support disability-related requests for accommodation and for employers to understand the accommodation need.
The type and scope of medical information that an employee may be required to provide for an accommodation request was clarified by the Ontario Human Rights Commission (OHRC) on Feb.1, 2017, in its release of the OHRC policy position on medical documentation to be provided when a disability-related accommodation request is made. Specifically, the policy statement indicated that employees are expected to produce medical documentation that includes the following information: confirmation that the person has a disability; the limitations or needs associated with the disability; whether the person can perform the essential duties or requirements of the job with or without accommodation, the type of accommodation that may be needed to allow the person to fulfil the essential duties and requirements of the job; and regular updates about when the employee expects to return to work, if he is on leave.
The policy statement also confirmed that an employer is not permitted to ask for certain medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless this information is related to the accommodation being sought, or to better understand the employee’s accommodation-related needs. Generally speaking, an employer should be focused on obtaining information regarding an employee’s functional limitations.
With Bill 148’s prohibition on sick note requests as proof of entitlement to PEL, it is unclear how the proposed amendment will interact with the employer’s obligation to seek medical documentation under the code as part of the accommodation process. For example, an employee could be absent due to injury or illness for the entire 10-day PEL and the employer will be limited in assessing the employee’s fitness to return to work because of an unawareness of the extent of the illness or injury, and the safety-sensitive nature of the work environment. It is unclear whether Bill 148’s prohibition on sick notes would restrict an employer from requesting the employee to provide medical documentation confirming fitness to return to work, or whether the employee has any accommodation-related needs.
A situation could also arise where an employer has suspicions that an employee’s mental health is connected with the multiple absences over a short period of time as this employee has been accommodated in the past for mental health reasons. Under the code, the employer would have the duty to inquire whether an employee has a disability that requires accommodation because the employer has reason to believe there is a relationship between a disability and the employee’s ability to perform his job duties and responsibilities.
A plain and strict reading of the language of the amendment with respect to sick notes would lead to the interpretation that an employer is only prohibited from requiring an employee to submit a sick note for the purposes of proving entitlement to PEL. Arguably, the nature of the requirement to submit medical documentation as evidence of entitlement to a statutory leave of absence differs from the requirement to provide medical documentation confirming whether an employee has a disability requiring accommodation. As such, based on this interpretation of the provision, an employer could rely on its accommodation obligation under the code to require an employee to provide medical documentation related to the use of PEL days, so long as the request is related to accommodation under the code.
As with many of Bill 148’s proposed changes, the Ontario government has not issued any interpretive guides on this provision, nor addressed how the proposed change would affect requests for medical information in the context of accommodation. Being only proposed legislation, courts and tribunals have not had the opportunity to consider and interpret the various provisions and their scope of application. While it is expected the majority Liberal government will pass the proposed legislation in its current form, it is also still possible that portions of Bill 148, including the prohibition on sick notes where PEL entitlement is concerned, will be revised. If Bill 148 as it stands today is passed, employers will need to review their policies and procedures on requesting sick notes related to sick days that fall within the PEL entitlement.
Nevertheless, we will have to wait and see what the government’s position is on requesting medical documentation for PEL days for the purposes of meeting the duty to accommodate. Clarification on this point will be crucial as the Human Rights Tribunal has held, and the OHRC has taken the position, that the failure of the employee to provide adequate medical documentation could result in the failure by the employee to participate and co-operate in the accommodation process, relieving the employer of its obligation to take any further steps to accommodate. Further direction would assist in resolving an impasse between an employee relying on the ESA provisions to refuse to furnish medical documentation and an employer maintaining its duty to inquire has been triggered and medical documentation is required.
