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Sick notes explained

Most employers will not ask you for a note from your doctor justifying a one or two day absent because of illness unless they think you are faking it. While they may have every right to ask for the note, whether or not they have the right to terminate you if you don’t provide it is quite a different matter.
If you work for an employer with more than 50 employees, you are allowed 10 days off  for personal urgent issues per calendar year without reprisal.  That can include your own illness. That does not mean they have to pay you for the day off. They can ask for justification for the absence  but if you’ve got no track record of being excessively absent, firing you because you stayed home with the flu for two days but didn’t go and see a doctor is not going to fly with the Ministry of Labour if you file a complaint.  They have the power to order you reinstated with back pay if the employer gets it wrong.
It used to be that many employers had something in their personnel policies indicating that employees absent more than three days were required to have a doctor’s note. We are starting to see those provisions disappear because employers want more flexibility. When they notice there is an employee who is absent from work the day after every Leafs game, they want to be able to start demanding notes. Unless there is some overriding illness or disability that needs accommodation, employers will often put a routinely sick employee on notice: “Please be advised that for any future absences due to illness you will not be allowed to return to work until you have provided a doctor’s note justifying the absence and you will not be paid for any days missed.”
There is no law anywhere requiring employers to pay for sick days for non-unionized employees.  If they do pay for some sick days, they can require a doctor’s note before they issue the cheque.
If you work for an employer with more than 50 employees, they can tell you that they won’t discipline you for taking a sick day off if you are within your ten day limit but they won’t pay you for it unless you have a doctor’s note.  If an employer is not paying for the sick time, it should never ask for a diagnosis. Make it clear there will be no discipline if the employee does not provide it, but they will not be paid.  Of course, once an employee has been away for 10 days or part days in a calendar year, all bets are off. If they can’t justify the medical absence, discipline may follow.
If you are an employer and have not forewarned an employee that you are going to start demanding doctor’s notes, there is not a lot of point in telling them when they show up at work after two days off that they need a doctor’s note. All they are going to do is go to a doctor’s office and tell them they were sick. The doctor will write a note that says, “Joe reports that he was sick on Monday and Tuesday and could not attend work.” So, you put the employee to some inconvenience and his doctor but nothing has really been achieved. It’s far more useful to put an employee with an absenteeism problem on notice that they are henceforth going to need a doctor’s note before they can return to work. If they really are malingering and they are lying in bed one morning thinking about calling in sick and know that they are going to spend part of their day traipsing to the doctor’s office or a walk in clinic, it may persuade them that it’s not worth the effort.
Good employees who have not started to irritate their employer with frequent absences other than for real sicknesses are rarely even asked for a doctor’s note. Everyone gets sick once in a while and employers get that.
After all, if the best treatment to get an employee back to work is bed rest and liquids, their recovery is not assisted by a trip to the doctor’s office that irritates both the employee and the doctor.
As published in the Hamilton Spectator, October 1, 2012
Ed Canning
Ed Canning
P: 905.572.5809