Labour and Employment Law Blog

It is not uncommon, but frustrating for employers, when an employee who is off work for an alleged illness provides no doctor’s note or a doctor’s note that simply says something like “Patient needs to be off work for a month”. The employee then assumes that they are entitled to have the time off with no further questions asked. Sometimes their doctors think this too.  But such is not the case.  Subject to specific limitations in a collective agreement or statutory sick leave provisions in some jurisdictions, an employer has the right to assess the legitimacy of an employee’s illness, since it amounts to a request for a “leave of absence”. When confronted with no doctor’s note, or an unsatisfactory one, particularly for a lengthy or repeated absence(s), an employer generally has the right and should ask for confirmation from the employee’s doctor of the following information:

• the general nature of the illness or disability for which the leave is required. Keep in mind you are not entitled to the specific diagnosis, just the general nature;
• the prognosis for a full or partial recovery;
• the expected length of any treatment and/or absence from work;
• any restrictions that the employee might face when returning to work;
• whether a gradual return to work will be needed;
• the details of any proposed gradual return to work plan;
• whether the employee will be taking any medications that might affect their ability to perform their work, and if so, how the medications might impact the work. Keep in mind that an employer is not entitled to know the specific medications, just the impact on work; and
• whether the employee might need any other reasonable accommodations when they return to work.

An employer should give the employee a specific time line to produce the information, keeping in mind that an employee may have some difficulty getting into see a doctor immediately. If access to a medical practitioner is an issue, an employer should give the employee some latitude in getting the response before taking any disciplinary action against the employee. Employers also should consider reimbursing employees for the cost of the requested doctor’s report, if applicable. If clarification is needed or the report does not provide sufficient information, the employer should request that the employee follow up with their treating physician. 

Sometimes a doctor will refuse to provide the information requested because it is subject to “doctor/patient confidentiality”. An employer should not accept that response. Even if there is such confidentiality, it is the patient-employee’s confidentiality to waive, and it is the employee’s job that is in possible jeopardy if they do not provide sufficient reason for their need for a leave. In such circumstances, the prudent employee will waive any such confidentiality.

If the employee says they are not ready to come back after the proposed leave initially suggested by the doctor, the employer should request another doctor’s report explaining the need for the extended absence and its expected duration.

Further, in making decisions about an employee’s continued leave of absence or return to work after an illness or disability leave, an employer should not rely solely on advice given by benefits plan insurers with regard to whether an employee is “disabled” or eligible for disability benefits. Keep in mind that just because an employee no longer meets the definition of “disabled” for the purposes of receiving benefits under an insurance policy does not mean that the employee is not otherwise disabled from returning to work. So if an employee does not return to work after the insurer ends their benefits, an employer should still request current information from the employee’s doctor as to whether the employee is fit to come back to work. However, an insurer’s decision may be a good basis for following up with the employee as to their readiness to return to work.

Finally, all employers should, subject to any specific statutory or collective agreement requirements, institute a policy on how long they will continue an employee’s benefits while they are on leave. This policy should be evenly applied to all employees. Too many employers have no policy and then find themselves in a situation where an employee has been off on a medical leave for many months or even years and the employer is continuing to fund their benefits. If an employer then ends the employee’s benefits coverage in the absence of a policy, individual contractual or human rights issues may arise.  Therefore, the prudent employer will have a policy in place on how long they will continue benefits and apply it uniformly to all absences from work (subject, of course, to any statutory requirements to continue benefits during certain absences, for example, during a maternity or parental leave).