Canadian HR Reporter

C O L U M N S 26 www.hrreporter.com T O U G H E S T H R Q U E S T I O N Have a particularly difficult or interesting question? Why not share it with us? Email: sarah.dobson@keymedia.com Have a question? IS A DOCTOR'S NOTE ALWAYS REQUIRED? Q Can employers require doctors' notes from employees to support all absences taken due to illness to existing employment agreements? A The usual answer, technically, is yes, but we're living through an unusual and severe crisis that's upending everything from employment law to HR best practices. The COVID-19 outbreak is shutting down entire sec tors and has le f t many employers struggling. Many are not concerned with their e m p l o y m e n t s t a n d a r d s o b l i g a t i o n s a t this time. But even as the crisis escalates, the employers need to keep a sharp focus on those legal responsibilities to avoid unnecessary costs and potential liability. They also need to take steps to maintain their company culture and employer brand before eventually re-engaging their workforce to restore productivity and growth. In Ontario, for example, the Employment Standards Act, 2000 provides several job- protected leaves of absence to employees with at least two weeks' service, including up to three days of unpaid sick leave due to personal illness, injur y or medical emergenc y. Employees are also entitled to up to three days of Family Responsibility Leave each year due to the illness, injury or medical emergency of certain family members or an "urgent matter" that concerns those family members. According to the Ontario Ministry of Labour, Training and Skills Development, employers can reasonably request "a copy of a medical certificate relating to the employee's family caregiver, family medical, or critical illness leave." They can also reasonably ask for evidence for other types of leave, as long as it i s n' t r e l a t e d t o s o m e o n e w h o i s n' t the employee. The key caveat is the clause calling for the "reasonable" application of their right to request a doctor's note. If an employee who is rarely absent from work misses a day due to illness, for example, it would likely not be considered reasonable to request confirmation of that illness. For those who are chronically absent, however, requiring evidence to support the need for a medical leave might be reasonable. However, with the passage on March 19 of the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 in Ontario, employees are indefinitely exempted from the requirement to provide a medical note for a health-related leave of absence. The measure is retroactive to Jan. 25, when the firs t presumptive COVID -19 case was confirmed in Ontario. However, the emergency legislation clarifies that "the employer may require the employee to provide other evidence that is reasonable in the circumstances, at a time that is reasonable in the circumstances. This could include such requests as a note from the daycare or for evidence that the airline cancelled a flight, but not a medical note." In other words, employers are still permitted to confirm the reason for an employee's absence but not, for the time being, if that absence is due to illness. The act also extends job-protected leaves for employees suspected of being infected, who are in isolation or quarantine or are receiving medical treatment due to COVID-19. Those who need to care for a child off from school or a relative who may be ill are also being granted leave. That includes cases where employees are instructed by their employer not to come into the workplace as a precaution or due to suspected infection. As a best practice at this time, all employers should require employees displaying COVID- 19 symptoms or who are self-isolating to provide medical documentation clearing them to return to work. Social distancing practices should be followed and employees permitted to work from home. If working from home isn't an option, and if it's feasible from a financial perspective, employers should also consider paying individuals throughout this crisis to avoid an employee's temptation or a sense of obligation to come into the workplace, as well as to mitigate the potential loss of income. Now, perhaps more than ever, workers need to know that their employers are focused on their health and well-being above all else. CHRR The COVID-19 pandemic is changing the way some employment standards are approached — including the an employer's right to require a doctor's note verifying an employee's time off due to illness, says Laura Williams of Williams HR Law Laura Williams Founder and principal of Williams HR Law in Markham, Ont.

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