Expanding prohibitions on sick notes in Canada

An employer’s ability to ask for a sick note when an employee is absent from work due to illness is becoming increasingly curtailed across Canada. A sick note is written confirmation from a regulated health professional that an employee’s short-term absence from work is for medical reasons.

At the moment, seven jurisdictions across Canada have some kind of statutory restriction on sick notes in place (the federal jurisdiction, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island and to some extent Quebec). Depending on the jurisdiction, these restrictions may:

• Prevent an employer from requesting a sick note in relation to a statutory leave until an employee’s absence extends beyond a defined number of days; 
• Prevent an employer from requesting a sick note for any illness-related absence (related to statutory leaves or otherwise) before a defined number of days of absence; or
• Limit an employer from requesting a sick note only if it is warranted in the circumstances.

Ontario may soon prohibit any sick notes in connection with statutory sick leave requests. Currently, Ontario employers may require sick notes from employees who take unpaid statutory sick leave under the Employment Standards Act, 2000, if doing so is “reasonable in the circumstances.” This will change with the passage of Bill 190, Working for Workers Five Act (currently at second reading in the Ontario legislature). Employers will no longer be permitted to ask for sick notes where an employee uses statutory sick leave. Employees are entitled to three days of sick leave per year. Instead, employers will only be permitted to ask employees for other evidence that is “reasonable in the circumstances.”

Similarly, in Quebec, Bill 68, An Act mainly to reduce the administrative burden of physicians, was introduced on May 31, 2024, following the lead of other jurisdictions in this regard. Currently, employers may require a sick note related to a leave under the Act respecting labour standards if “it is warranted” – for example, due to the duration of the absence or its repetitive nature. If adopted by the National Assembly of Quebec in its current wording, Bill 68 would prohibit employers from requiring a sick note attesting to the reasons of the medical absence for the first three leaves of absence of three consecutive days or fewer annually. It would also prohibit employers from requiring a sick note to justify a leave of absence relating to family or caregiver obligations as defined in the law. 

So if sick notes are prohibited, what can employers do to ensure illness-related absences are valid?

From a practical perspective, employers may:

• Trust employees for short absences. In most jurisdictions the ban on sick notes applies only to short, statutory sick leave periods (these periods vary among jurisdictions). Once those limited leave periods are exhausted, the employer is free to require sick notes again. For this reason, employers could simply choose not to require any alternative evidence and trust their employees to use sick days appropriately for a few days per year unless suspicion of dishonest use arises.
• Require other evidence. Alternatively, employers could consider requiring other evidence relating to the absence. For example, employers could require employees to complete a signed attestation or other form explaining that their absence was related to an illness or injury and they were unable to work for the stated reason. While this is not a third-party verification, it is evidence the employer could rely upon if the employee was later investigated and/or disciplined for dishonesty or misuse of leave.
• Investigate suspicious absences. If employees have reported an absence as medical and evidence to the contrary later emerges, then employers can certainly investigate these suspicious absences. Depending on the circumstances, this could involve having employees explain the situation and/or requiring them to provide alternate evidence substantiating their illnesses or injuries (other than a sick note). For example, employees who indicated they were in an accident could be required to provide the accident report associated with the incident. Similarly, employees who say they visited the hospital or doctor’s office on a specific date could be asked to produce their parking receipts.