With the COVID-19 pandemic spreading across the globe, employees and employers alike are asking our employment law team whether employers can still ask for sick notes.
We are telling them that, technically and legally, yes, but not for long. Also, insistence is to be avoided where possible.
The Employment Standards Act, 2000 is a piece of legislation which sets minimum standards for employment in Ontario. Under the Act, employees are entitled to take a maximum of three (3) days’ unpaid job-protected leave each calendar year due to a personal illness, injury or medical emergency (i.e. sick leave). Employers may require an employee to provide evidence “reasonable in the circumstances” that they are eligible for sick leave. In the case of COVID-19, exposure to the virus would qualify as a medical emergency and such evidence may include a doctor’s note.
Employers are being faced with very tough decisions, such as ceasing operations, mass layoffs, and terminations due to the virus. Unfortunately, the current employment legislation was not drafted with global pandemics in mind and does not adequately address this unique situation. Rather, it was intended to address and balance the day-to-day needs of employees and their employers under normal circumstances.
In order to fill in the gaps, the provincial government announced on March 15, 2020 its intention to table emergency legislation to address employment issues relating to the pandemic: Bill 12, An Act to amend the Employment Standards Act, 2000 in respect of leaves of absence. According to Premier Ford, this emergency legislation will:
- Provide protections to employees who are required to go into quarantine or self-isolate due to potential exposure to the virus; and
- Remove the requirement to provide a sick note to employers for reasons relating to the virus.
A first draft of the bill is not yet available. We will know more and report back about its contents once it is published on the Legislative Assembly’s website.
As an aside, in addition to the minimum, employers are entitled to provide more leave, paid or unpaid, if they wish, usually under a sick leave policy. Where employees must stay home, employers are encouraged to explore the possibility of allowing employees to exhaust carried over sick leave, accrued vacation and other protected leaves. While employers can still technically insist on a sick note, to do so puts undue strain on the health system which may soon be stretched under the weight of the pandemic. Sick employees, forced to attend medical clinics, may expose others to the virus and undermine efforts to contain the outbreak.
Our society is in uncharted territory with COVID-19; and so too is employment law. Time will tell how the law evolves to cope with this new reality.