Documentation is required when off sick - sick pay depends on it

QUESTION: I have been off ill from my work for about 2 months now. Every 3 or 4 weeks I have forwarded a doctor’s note to my employer indicating that I am off due to illness. Last week I got a letter from my employer indicating that they wanted a letter from my doctor confirming that I was unable to work at the this time, that I was following the course of treatment recommended by the doctor and providing a guess, if possible, as to when I might be able to return to work. They also indicated that they want my doctor to indicate whether there is any accommodation they can make that would expedite my return to work. The letter says that the employer will pay the reasonable cost of me getting this letter if the doctor charges me for it and requires that I provide the letter within 3 weeks. Do I have to do this? Aren’t they being a bit nosy? What happens if I don’t give them the doctor’s letter with the information they have requested?

ANSWER: In fact you do have to do this. A fundamental term of the employment relationship is that you cannot be absent from work without a valid justification. Your employer has been very careful not to step over the boundaries and ask you for the details of your diagnosis or any medications you are receiving which could disclose that diagnosis. If your employer was paying you sick pay to be off, they could in fact ask for the diagnosis itself. If they are not paying sick pay then they have no right to the diagnosis.

All the information requested by your employer is considered to be relevant

I assume since your employer has not asked for the diagnosis  because they are not paying you sick pay. If you do not get the doctor’s letter, you’re probably going to receive a follow up letter giving you a further 2 or 3 weeks in order to produce the letter. The letter will probably conclude by telling you that if you don’t provide the doctor’s note without some sort of reasonable explanation you will be considered to have resigned your employment. If you don’t have an explanation as to why you didn’t get the doctor’s note and you simply refuse to respond, the employer will have a very good argument that you quit. Your benefits coverage, if you have any, will end and you will be entitled to nothing other than outstanding wages and vacation pay.

Finally, the reason that the employer has the right to ask for an actual diagnosis if they are paying sick pay is straightforward. There is no law anywhere requiring an employer to pay an employee sick pay of any kind. If you were in a union, your contract might say differently. With everyone else, it depends whether the employer has a policy of paying sick pay.

Since there is no legal obligation for the employer to pay sick pay, they can put whatever conditions they want on providing that sick pay. If you don’t want the sick pay, don’t give them the diagnosis. If you want the sick pay, you give them the diagnosis. 

A smart employer who wants the diagnosis to justify the sick pay will make it clear that if you don’t provide the diagnosis you won’t get the sick pay but you will not be terminated so long as the other information is provided.

As published by The Hamilton Spectator, October 27, 2007. Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.