What’s up, doc? The impact of Quebec’s Bill 68 on employer management of absences and uninsured employee benefit plans

Bill 68, An Act mainly to reduce the administrative burden of physicians, was assented to by the National Assembly on October 9. According to the Minister of Labour, adoption of this bill could free up many appointment slots with the province's physicians. While this is a laudable goal in terms of improving access to healthcare services, the legislative changes are likely to cause the province's employers headaches. Indeed, the impact of this legislation will be felt on two levels:

• the possibility of employers asking employees to justify their absences with a medical certificate;
• management of uninsured employee benefit plans.

This legal update describes these impacts.

The employer’s right to request a medical certificate to justify an absence

Bill 68 introduces changes to the Act respecting labour standards (ARLS) to provide that an employer may not ask employees to provide a document attesting to the reasons for their absences (e.g.: a medical certificate) for the "first three periods of absence not exceeding three consecutive days taken over a period of 12 months." This will apply to absences for the reasons set out in section 79.1 ARLS, i.e. sickness, an organ or tissue donation for transplant, an accident, domestic violence or sexual violence. Regarding absences for "family obligations,"¹ the employer will not be able to ask the employee to justify such absences with a medical certificate.

These legislative amendments will come into force on January 1, 2025.

It is important to put the impact of these changes into perspective. First of all, at present, the ARLS does not allow employers to require a medical certificate to justify any short-term sick leave, for example, when an employee is absent due to a cold or gastroenteritis. In fact, the employer can only require a medical certificate if "it is warranted by the duration of the absence or its repetitive nature."²

Case law has recognized that it may be warranted for an employer to require a medical certificate in the following circumstances, among others:

• extended leave;
• abuse; or
• questionable absences.

It is therefore mainly in the latter two circumstances that the Bill's impact is likely to be felt.

In fact, in the case of sickness, for the first three absences of three consecutive days or fewer taken over a period of 12 months, the employer will not be able to require a document to be provided, attesting to the reason for the absence. The law does not create exceptions for cases of abuse or questionable absences, but there may be circumstances where requiring a document could still be justified. Moreover, the use of the term “document” is rather broad and includes a medical certificate, but also other documents, such as a police report, considering the nature of the absences to which section 79.1 ARLS refers.

In cases of absence due to family obligations, the employer may not require a medical certificate for each of the 10 days of absence provided for in the ARLS. However, in such cases, the employer may require a document other than a medical certificate to attest to the reasons for the absence.

It is also important to remember that employees will still be required to notify their employers “as soon as possible” and provide a general reason for their absences (e.g. sickness, caring for a child or relative, etc.).³ In the case of absences due to family obligations, the employee must also have taken reasonable steps to avoid the absence or to limit its duration. The only change is that the employer will not be able to ask the employee to provide a document such as a medical certificate to support this reason in the specific circumstances set out above.

Finally, an employer will not be prevented from requesting a document attesting to any absences other than those provided for in section 79.1 ARLS or for family obligations in cases of abuse, as long as this is justified. In fact, in cases of abuse, employees often invoke a range of reasons for absence that are not always related to their health or family obligations. Employers will therefore be able to continue to monitor problematic absenteeism cases within the new parameters introduced by these legislative amendments.

However, it is still necessary to review your practices, policies or collective agreement in this area to ensure compliance with legislative changes.

Uninsured employee benefit plans

This section of Bill 68 applies to:

• an insurer within the meaning of the Insurers Act;⁴
• "a funded or unfunded uninsured employee benefit plan that provides coverage that may otherwise be obtained under a contract of insurance of persons."

Employers administering uninsured benefit plans may be affected by these new provisions.

An insurer or administrator of an uninsured employee benefit plan may not, directly or indirectly, require the insured, participant or beneficiary to receive a medical service in order to obtain reimbursement for the services of a health care provider or the cost of a technical aid. In addition, it will not be possible to require a medical service at a predetermined frequency other than that determined by the attending physician in order to maintain payment of a disability benefit. Exceptions may be provided for in a regulation to be adopted by the government.

The insurer or administrator will be deemed to have contravened these new prohibitions when the insurance contract or employee benefit plan contains a clause allowing it to require such a medical service.⁵

In the event of a contravention, the law provides for the following administrative and penal measures:

• recovery by Santé Québec from the insurer or administrator of the cost assumed by the Régie de l'assurance maladie du Québec (RAMQ, Quebec’s government health insurance board) for a medical service;
• the issuance by Santé Québec of an administrative monetary penalty of $5,000; or
• imposition of a fine of $1,000 to $1,000,000.

Most of these new legislative provisions come into force on dates to be set by the government. In the meantime, employers administering an uninsured employee benefit plan would do well to prepare now for the coming into force of this section of Bill 68.