I was gobsmacked when I heard that on behalf of Ontario's
doctors Scott Wooder, president of the Ontario Medical Association,
had declared that employers should no longer be able to ask
employees for sick notes.
My initial presumption was he was either being misquoted or was
making an early bid for the most idiotic comment of 2014. But then
the Nova Scotia Medical Association chimed in, agreeing with
After all, Dr. Wooder explained, we don't want ill
employees filling doctor's offices or taking up their time.
Wait a minute. Isn't the doctor's office exactly the place
where sick people are supposed to go?
Although Dr. Wooder's example related to flu season, his
recommendation was more general. What his argument misses, however,
is the law. Employees are only permitted to call in sick when they
are disabled from working or contagious, not when they are feeling
a little off. Employers, for their part, are required to
accommodate ill employees by modifying their jobs to ones that they
For example, if a disability prevents someone from being able
to concentrate, the employer can find that employee a job,
say, stuffing envelopes. Employees, according to the Supreme Court
of Canada in Renaud v. Central Okanogan School District, are
required to co-operate. To do this, employers need
doctors' notes delineating what the employee can do, what their
specific limitations are and when they will likely recover. The
average note doctors provide ie. "Johnny is too sick to work
for the week" are unhelpful to everyone.
The Conference Board notes that illness in the Canadian
workforce is a $16-billion a year problem for our economy —
or rather employers, in the form of overtime, lost productivity,
missed sales and the burnout and stress of other employees who pick
up the slack from absent co-workers. That is assuming these
employees are actually sick.
Dr. Wooder suggests employers simply accept the word of their
workers, claiming doctors should not be employers' truant
officers. While that sounds good in theory, in reality, if
workers never had to authenticate claimed illnesses, sick leave
claims would skyrocket.
Since Dr. Wooder made his statement, the Toronto Transit
Commission has announced that its sick leave incidence among
unionized workers declined substantially after it required
doctors' notes. Even at that, the claims remain far more than
double the average for their managers.
In addition, few employers require employees to obtain
doctors' notes every time they call in sick. I don't have a
single client, anywhere in this country, with such a policy.
Employees are asked for notes either after being away for a certain
number of days — for most employers that is three or five
— or only after showing a suspicious pattern of absence, such
as regularly absenting themselves on the days before or after long
weekends. For the most part, the employees most upset by such
patterns of absences are the co-workers who have to pick up the
slack and are anxious to have their employer force those employees
to prove they are actually ill.
In the absence of sick notes, the $16-billion costs to the
economy would likely escalate dramatically. If more employers
required sick notes, on the other hand, there might be a
significant decrease in that number, even if merely by making it as
convenient to come to work as to wait at the doctor's office
and worry whether the doctor will certify them as disabled.
Who takes the most sick leave in Canada? By wide margins, its
the public sector, unionized employees and women. While the public
sector and unionized employees do so because they are the most
protected and entitled groups in society. Women on the other hand
are neither more ill nor indolent — in the absence of a
family policy they call in sick when they need to remain home with
a sick child. And rather than take that time off without pay, which
employers must legally accommodate, they call in sick.
This article originally appeared in the Financial Post.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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