Ontario may see significant changes regarding the ability of employers to ask for evidence from employees requesting sick leave. This evidence often involves a medical note (also called a ‘sick note’ or ‘doctor’s note’) provided by a medical professional. Currently, dentist employers often ask for medical notes for statutory sick leave, but proposed legislative changes could limit this practice.
Dentist employers should be aware of the current restrictions on requesting a medical note from their employees and the possible changes to these restrictions proposed by the Ontario government.
What is the Current Ontario Law on Requesting Medical Notes?
Under the Ontario Employment Standards Act, 2000 (ESA), employees may take sick leave under certain conditions. Section 50(1) of the ESA allows employees with at least two consecutive weeks of employment to be entitled to unpaid sick leave due to personal illness, injury, or medical emergency. Employees are limited to claiming a total of three days of statutory sick leave each year under the ESA (s. 50(2)). Note that even taking a part of a day counts as one full day of sick leave.
Under section 50(6) of the ESA, an employer may require that employees provide evidence that they are entitled to sick leave if doing so is reasonable. Employers have often requested medical notes to substantiate an employee’s claim for sick leave.
Privacy protections prohibit employers from requesting an employee’s specific medical diagnosis. But employers can ask for a medical note that explains (1) the date the medical professional examined the employee, (2) whether the medical note was issued by the same medical professional who examined the employee, and (3) the expected length of the illness.
Thus, current law allows dentist employers to request medical notes containing certain information from employees requesting sick leave under reasonable circumstances.
What are the Proposed Changes to the Ontario Law on Requesting Medical Notes?
Ontario’s proposed Working for Workers Five Act, 2024 (Bill 190) is currently under consideration in the Ontario legislature. This means that Bill 190 is not yet “in force” – so it is not yet binding law on employers. If Bill 190 passes and receives royal assent, then it will become binding law.
That said, the date that certain sections of Bill 190 would come into force depends on its different commencement sections. This means that if Bill 190 is passed and receives royal assent, some parts of the new law may come into force immediately, whereas other parts may come into force at another date to be named by the Ontario Lieutenant Governor.
Should Bill 190 become law, it will amend the ESA regarding sick leave evidence. While employers would still have the right to request evidence of sick leave entitlement, they would be prohibited from demanding a “certificate” from a “qualified health practitioner,” which likely includes medical notes.
Bill 190 would also define a “qualified health practitioner” as either one of the following:
- a person who is qualified to practise as a physician, a registered nurse, or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the employee; or
- in the prescribed circumstances, a member of a prescribed class of health practitioners.
The effective date for these amendments would be the date Bill 190 receives royal assent.
Consequently, dentist employers would no longer be able to ask for medical notes if the employee is requesting to use their three-day statutory sick leave under the ESA. However, an employer may require employees to provide alternative evidence of their sick leave entitlement, such as an employee attestation. Moreover, dentist employers could request medical notes for sick leave beyond the three-day statutory entitlement,
Takeaways for Dentist Employers
Current Ontario law allows dentist employers to request a medical note when it is reasonable to request it. But if Bill 190 becomes law, it may restrict an employer’s ability to request medical notes from their employees for the three-day statutory sick leave under the ESA. Employers may still be able to request other forms of evidence, such as employee attestations.
Because of the proposed changes to Ontario employment law and the potential legal disputes that could arise from sick leave requests, dentist employers should consult with their legal team. This will help ensure compliance with current regulations and prepare for any forthcoming legal adjustments.
Thank you to Ephraim Barrera for his contribution to this article. The contents of this article are not to be construed as legal advice. Contact Emerge Law’s lawyers for legal assistance.