Employers still asking for a doctor’s note: Employment lawyer Fiona Martyn on CTV News

Interview Summary

Despite the season, many employees across Canada are questioning their rights to sick leave and the expectations that come along with it. Are employers still permitted to ask for a doctor’s note if an employee needs to take a leave of absence? Are there situations where an employee does not need a doctor’s note?

Fiona Martyn, an Ontario employment lawyer and Senior Associate at Samfiru Tumarkin LLP spoke with CTV News’ Alex Arsenych to discuss employer expectations and employee rights.

Interview Notes

• Prognosis not diagnosis: Martyn stated that employers are within their rights to ask for a prognosis from employees. “It’s fair for an employer to request information about some of the limitations associated with the disability, whether or not the person can perform the essential duties of the job, what type of accommodations they’ll require to perform the essential duties of the job, how long they might be away for when the person expects to come back to work. All that prognosis information is fair game,” Martyn explained.
• Need for accommodations: It is also vital for employers to abide by accommodations given by a treating doctor. “It’s difficult for an employer to say they can’t accommodate an employee,” Martyn said. “They can’t just say, ‘Oh, it’s too expensive,’ or ‘Oh, this is inconvenient.’ If the employer has the resources to accommodate, they have to accommodate.”
• Point of undue hardship: Martyn explained the importance of context in accommodating employees. “If someone’s hired as a truck driver and they suffer a leg injury and can no longer drive for the rest of their life, that would be what’s known as a frustration of contract, meaning they can no longer perform the essential duties of the job that they were hired for,” said Martyn. This would lead to a termination and an employee would likely receive minimum severance entitlements.
• Alternatives to doctor’s notes: Martyn noted that while in Ontario, the provincial government proposed no need for doctor’s notes, an employer can request alternative evidence to prove they were ill. “Employers can still request alternatives from their employees as proof of illness, such as receipts for over-the-counter medication or self-attestations.”

Related Resources

For further insights and discussions related to employee rights, explore the following resources:

• Terminated due to an illness