For years, the Ontario Employment Standards Act, 2000 (the “ESA”) has allowed employers to make reasonable requests of their staff to provide reasonable evidence, including a doctor’s note (or sick notes), when employees choose to use part, or all of their three sick days as provided under the ESA.
While employers were never required to demand sick notes, many did institute policies requiring sick notes as permitted under the ESA in order to track and address attendance of their staff. However this regime was not without its critics.
Specifically, the Canadian Association of Emergency Physicians had advocated for a ban on sick notes, especially for people with minor illnesses. The CAEP stated that sick notes put unnecessary strain on both patients and healthcare resources. In a statement released in March 2020 by the Association, concerns were raised over the fact that sick notes “encouraged patients with infectious disease such as influenza or gastroenteritis to leave their home and visit their family doctor or the emergency department (ED) purely for a piece of paper – which puts other patients at risk.”
Further, with average wait times to see doctors at walk-in clinics throughout the province quoted at about an hour, employees sometimes found the process of obtaining a doctor’s note to be cumbersome.
New Legislation on Sick Notes coming soon
The debate on sick notes came to a head when on April 24, 2024, Ontario’s Health Minister Sylvia Jones announced that employers would no longer be permitted to request that a sick employee provide a doctor’s note to justify their absence. On May 6, 2024, the Ontario government introduced the Working for Workers Five Act, 2024, and on May 16, 2024, it passed “Second Reading.” If it passes “Third Reading,” the Employment Standards Act will be amended to prohibit employers from requiring a sick note for a worker’s job-protected sick leave.
It is important to note that this may not mean that employees can call in sick without justification or evidence. Employers will still be able to request other forms of evidence that is deemed “reasonable” under the circumstances. However, more guidance from the Ministry of Labour will be required on what will constitute “reasonable” evidence.
An update to this blog will be released when the new legislation passes, or when the Ministry provides more guidance.
It is important to note this discussion pertains to Ontario only. Similar discussions are being held in other provinces such as in BC, where many have called for similar legislation. If you operate in a jurisdiction other than Ontario, this may be a good read: Know your Jurisdiction.
In light of the recent legislation, if your employer is asking you for sick notes and you are unsure about your rights, Simes Law can help you navigate these questions. Please contact us using this form.
Please note that the information contained in this article is for informational purposes only and does not constitute legal advice of any kind.
