Will B.C. Soon be Saying “R.I.P.” to the Doctor’s Note?

In a recent article, Robert Smithson reports that Ontario plans to eliminate the requirement for doctor’s notes to substantiate employee sick days as part of efforts to reduce doctors' administrative burdens. Instead, employees will be able to provide self-attestations or other forms of evidence, a change expected to be mirrored in British Columbia soon. 

The original version of this article can be found on Smithson Employment Law Corporation. 

Recent media reports indicate that, as part of a suite of changes intended to free up doctors’ time, Ontario employers will no longer be permitted to demand a doctor’s note to substantiate an employee’s use of statutory sick days.  Rest in peace, doctors’ notes, we’ll miss you when you’re gone.

The CBC reported…

Ontario says it will force employers to scrap requirements for sick notes as part of an effort to cut down on paperwork for family physicians.

The change will be part of new legislation tabled by the minister of labour in coming weeks, a government official says. The amendments would eliminate the need for a doctor's note from employees who want to use part or all of their three days of provincially-mandated annual sick leave.

Employers will retain the right to require another form of evidence that an employee is ill, which could include self-attestations or a receipt for over-the-counter medication, the official said.

Ontario’s Health Minister indicated that instead of a sick note, employees will be allowed to provide attestations “that maintain accountability as employees request time off when they’re sick”.  Right.  Because a person saying he/she is sick and wants to take the day off (with or without pay) has always been a reliable indicator of his/her true condition.

Meanwhile, In British Columbia

B.C. recently imposed statutory sick days via our Employment Standards Act; employees can now take 5 paid sick days and 3 unpaid days, annually.  On the topic of substantiating the need for a sick day, B.C.’s Employment Standards Branch has the following to say…

Reasonably sufficient proof

“Reasonably sufficient proof” includes any adequate information that establishes or helps to establish that the employee's absence is due to illness or injury. Illness or injury may be broadly defined and includes both physical and mental illness.  …

The Act provides a direct mechanism to address any ambiguity or disputes on the entitlement to personal injury and illness leave in section 49.1(2). If the employee is able, upon the employer’s request, to provide “reasonably sufficient proof” to support the entitlement, that should guide the parties actions around this entitlement.

Determining what is “reasonably sufficient proof” calls for flexibility and a balancing of the rights and the obligations of the employee and the employer. The employee has a statutory entitlement to the sick leave, which is a job-protected leave under Part 6 of the Act. The employer has the right to manage its business and the workforce.

Proof of entitlement to sick leave may take many forms. For example, if it is reasonable in the circumstances, it could take the form of a receipt from a drugstore or pharmacy, a medical “bracelet” from a hospital, or a note from a doctor, nurse practitioner, psychologist, counsellor, or therapist. The proof requested should be proportionate to the leave and the surrounding circumstances.

In B.C., therefore, employers can still require employees to provide a doctor’s note to substantiate their need to take a paid or unpaid sick day.  But, if Ontario moves to eliminate that right, we can expect that B.C. will soon follow.

What’s The Problem?

What employers lose, with the pending abolition of doctors’ notes, is yet another aspect of their ability to manage and control their own workplaces.  Sporadic, unforeseen, and unplanned absences are one of the most disruptive occurrences employers contend with on a day-to-day basis. 

Placing the discretion to take sick days when desired solely in the hands of employees, without any risk of having to substantiate that leave, will only make the disruption worse.  Sick days – while inevitable – cost employers real money in additional wages, lost productivity, etc.

The vast majority of Canadian employers are not huge multi-national corporations with many thousands of employees.  They are small, owner-operated businesses with a handful of employees.  They can ill afford (no pun intended) to lose more workdays to unsubstantiated illnesses.  According to the federal government’s statistics…

As of December 2021, there were 1.21 million employer businesses in Canada. Of these, 1.19 million (97.9%) were small businesses, 22,700 (1.9%) were medium-sized businesses, and 2,868 (0.2%) were large businesses.  As of 2021, small businesses employed 8.2 million individuals in Canada, or 67.7% of the total private labour force.

I’ve said on many occasions that, decades ago, governments usurped the role of trade unions by legislating progressive changes to the workplace.  Trade unions had been at the forefront of the campaign to improve workplace safety, general working conditions, human rights, etc., but enthusiastic governments have long since assumed that role. 

In large part, of course, these legislated changes have had an overwhelmingly positive impact.  I won’t go into an exploration about how much working conditions have, as a whole, improved in the last century.  Trust me, they have.

But, it does appear that governments now dip into what they believe is employers’ infinite ability to absorb the cost impact of ongoing workplace “advances”.  Undoubtedly, doctors and employees will be happy with Ontario’s planned change.  Employers?  Not so much.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.