No cure-all for sick notes

Court reaffirms HR can ask for ‘better’ sick note

Going to the doctor to get a sick note is no picnic for employees — the added administrative task for an already-ailing worker may seem overly prescriptive. 

But employees often are sent back to secure a “better” doctor’s note if the first one is considered sparse on detail. That was the case in a recent Federal Court of Appeal case, Western Grain By-Products Storage Ltd. v. Donaldson, which found the employer was entitled to a more detailed sick note than the original two-liner because it stated simply the employee was “now capable of returning to his job.”

The employee, absent for 25 weeks, was required by his employer to present a better doctor’s note “as to his fitness level in relation to his duties and the work environment” before he would be allowed to return to work. The Federal Court of Appeal found it was reasonable for the employer to require such additional information. 

How much information? 
Employers asking for more detailed medical notes is actually fairly common, said Kevin Chapman, director of health policy and promotion at Doctors Nova Scotia in Dartmouth, N.S. 

“We get that a fair bit, actually. One of the things we get every now and then, for example, is a return-to-work kind of thing, and duty to accommodate… we get a lot with workers’ compensation, for example, or somebody who has been on short-term disability,” he said. 

But there’s always tension involved in employee medical information and requests for that information, said Matthew Curtis, an associate at Dentons in Toronto. 

“And the tension is the legal issues that arise from privacy law and human rights law, as well as an employer’s obligations under workplace safety,” he said. “When it comes to requesting employee medical information, an employer needs to be very careful about how they request that information.” 

Generally speaking, an employer is within its rights to ask for medical verification that an employee who has been off for some time is fit to return to work, said Hendrik Nieuwland, partner at Shields O’Donnell MacKillop in Toronto. 

“Typically, that is legally permissible under the procedural obligations under the duty to accommodate under human rights legislation.” 

Both employers and employees have obligations under the duty to accommodate. The employer has to take steps to accommodate any restrictions a disabled employee might have and, in order to do that properly, the employee has an obligation to provide the employer with sufficient medical information to allow the employer to make that assessment, said Nieuwland.  

“That doesn’t mean an employer can open the kimono and get all of your deep, dark medical secrets — that’s not the case at all. But an employer is entitled to ask for relevant medical information so that they can do the assessment. And the debate always comes down to ‘What is relevant?’ And there are no general rules there because ‘relevant’ is driven by facts and each person’s circumstances are different,” he said. 

However, employers can run into legal trouble if they are unreasonably intrusive in the requests for information, said Vincent Johnston, a partner at Harris & Company in Vancouver. 

“Employers have to remember that the greater the degree of intrusiveness of the request, the greater the legitimate justification they will have to show,” he said. 

For example, an employer may overreach if it asks an employee — who has a clean attendance record — for a detailed medical explanation after a two- or three-day absence, said Johnston.

“(Sending) a letter to them saying, ‘We require the following information including the nature of your illness, any restrictions, what’s the prognosis, et cetera,’ I would think in that scenario, an adjudicator would likely say, ‘That is more than you need, given all of the circumstances,’” he said. 

“Another situation in which employers often overreach is they ask for a diagnosis of the employee’s medical condition. And, generally speaking, information relating to a diagnosis is not information that should be disclosed to an employer.”

Accommodating employees
When it comes to accommodating employees and working around any restrictions they have, the information doctor’s notes can provide is pivotal, said Curtis. 

Under occupational health and safety law, the employer needs to take into consideration the safety of the worksite both for the employee himself and also for his co-workers. But that doesn’t give the employer carte blanche to ask for the employee’s entire medical file, including the diagnosis or private details, he said. 

“The focus should be on restrictions, medical limitations and ability to perform the job duties and responsibilities.”

However, some physicians can find it challenging to provide the level of detail employers may desire, particularly when they’re unfamiliar with the patient’s line of work or working environment, said Chapman.

“One of the challenges we hear from physicians a lot with that is ‘I don’t know your work environment so I don’t know what you can or can’t do,’” he said. 

“The physician might have a general insight into what the work might be like, but really doesn’t have a lot of really keen insight to say, ‘Well, this individual could do x, y and z.’ And, oftentimes, you rely on the patient, who is really your only conduit back to the workplace, to talk about what the intensity of the work might be.”

This can be even more challenging if it is an anxiety-related illness or mental health illness, said Chapman. 

“Looking for that sort of ‘sick note plus’ kind of thing on what the individual can do is quite challenging and oftentimes puts physicians in a place of obviously wanting to represent their patients and support their patients, but reaching in the dark… oftentimes, it relies on conversations with the patient to say (what they can and can’t do).”

When to ask for a sick note?
Employers also need to consider when to ask for a sick note in the first place, which will largely depend on how long the employee has been absent, said Curtis.
“A natural temptation may be to require a doctor’s note very early on but that may be unnecessary and a court may find that it’s unreasonable to require a lengthy doctor’s note for a short period of absence,” he said. 

“On the flip side, I think employers can be a little bit too reluctant these days… sometimes they let the matter go on too long without requesting either employee medical information or updated employee medical information.”

For the most part, physician associations haven’t mandated when notes should be necessary, said Chapman — but Doctors Nova Scotia and the Ontario Medical Association have come out strongly against requiring notes for short, infrequent absences.

“I don’t know that we’ve necessarily identified a sort of line in the sand — three days or five days or whatever the case may be,” he said. 

“The overarching thing for us has been when an individual comes in for a sick note, which is ostensibly an administrative exercise because it’s mandated by their employer, it puts a burden on the system to satisfy what for us is an administrative requirement. And it strikes us that we’re better served if challenging sick time is dealt with in other ways.

“That would be something like, someone who takes every Friday off after payday, dealing with it from the perspective of the individual worker rather than blanket policies that say, ‘If you’re sick beyond three days, in order to return to work, you must get a sick note.’”

Some firms — such as the Toronto Transit Commission (TTC) — require a sick note after every absence. But, as a matter of practice, most employers don’t ask for notes for illnesses that last less than three days because it becomes difficult for people take one or two days off to get a doctor’s note, said Nieuwland.

“After three days then, as a matter of course, you ask for a doctor’s note. Less than that, you don’t — unless you have a reasonable basis to (suspect) someone is malingering,” he said.

“The only time I recommend that you go for notes on short absences is (with) malingering suspicions. But there’s got to be a reasonable basis.”

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