Ending the practice of requesting doctors' notes from employees who stay home sick could create more issues than it solves, says Toronto civil litigation and employment lawyer Arthur Zeilikman.
The Ontario Medical Association recently called on employers to waive the requirement, saying sick notes require a trip to the doctor's office where germs can easily spread, CTV reports.
But, Zeilikman says, “Employers have a legitimate right to ask for some kind of proof that an employee was absent due to illness.”
From a legal perspective, he says, there would be no benefit to ending the practice.
"Employers have a legitimate expectation to see that employees who miss work do so justifiably,” he says.
Allowing employees to stay home without proof of illness may be problematic, says Zeilikman.
“It could definitely lead individuals to abuse the situation,” he warns.
Zeilikman says legal implications exist for an employer who doesn't have a sick note for an absent employee.
“An employee, who is absent due to illness, may claim discrimination on the ground of disability in the event the employer fails to accommodate, somehow retaliates or terminates the employee,” he says. “Although the law protects employees against discrimination on the basis of perceived disability (the absence of a note may not necessarily get the employer off the hook), not having to produce a note would be another difficulty the employer would have to overcome.
“While the employer should be reasonable in demanding the doctor’s note, say, if an employee is bedridden, he or she should be expected to provide the note upon their return to work and not while away on every day of absence, the employee should have a corresponding obligation to backup his absence.”