A proposed change to Ontario’s Employment Standards Act (“the Act”) contained in Bill 148 states that an employer shall not require an employee to provide a medical note from a qualified health practitioner (as defined in the Act) as evidence of a sickness if the employee claims a paid sick day under the Act. However, an employer may require an employee who takes a paid sick leave under the Act to provide evidence, that is reasonable in the circumstances, that the employee is entitled to the leave.

If this proposal is passed into law, the Act would override management’s common law right to require a medical note as proof of an illness for up to two days a year.

For more information on Bill 148, click here.

For more information on our October seminar which will discuss Bill 148, click here.

Can an employer request a better medical note?

I receive calls from employer clients who express frustration over the contents of a medical note submitted by an employee; often a one-line note.

The note states the employee is unable to work for a specified period of time. The note can be submitted in suspicious circumstances. For example, the employee may claim he is sick during a time he has been denied a leave or on the day after a long weekend.

There are two issues that arise in this scenario. One is whether the person is taking an unauthorized leave. The other is whether the leave is paid (assuming the person is entitled to paid sick leave).

The $64 000 Question: Can an employer demand that an employee attend an independent medical examination

When a suspicious medical note is received the employer often wants to know whether it has the right to force the employee to see a doctor of the employer’s choosing to confirm the illness.

Independent Medical Examinations when a Disabled Employee Requests Accommodation

The $64,000 question can and does arise when a disabled employee requests accommodation.

In this scenario, employers have the duty to accommodate an employee’s disability unless it would cause undue hardship. For this duty to be triggered the employee generally discloses a disability and requests accommodation.

An employer is required to accommodate both physical disabilities and mental disabilities.

For example, an employee may request significant accommodation based on minimal information such as a medical note that states: “John Smith is medically able to return to work on Monday and can work 2 hours a day for the next two weeks and 4 hours a day for the following two weeks.”

Can an employer demand that an employee attend an independent medical examination as part of the procedural aspect of the duty to accommodate? The answer is, of course, “It depends”

A Case Study: Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII)

The Facts

In April 2010 Mr. Bottiglia went on sick leave. At that time, he had accumulated approximately 465 paid sick days.

In June 2011 Mr. Bottiglia’s physician, Dr. Richard Levine, told the employer that he needed a medical leave until further notice and that when a return to work was foreseeable, the employer would be informed in a timely fashion.

In February 2012, Mr. Bottiglia told the employer “while it always has been my hope that my health situation would improve with time and allow my return to work, much to my chagrin and disappointment, my latest medical assessment indicates that a full recovery will take a prolonged period of time.”

In a March 2012 letter Dr. Levine stated that Mr. Bottiglia had been struggling with a mental disability. Dr. Levine further stated that Mr. Bottiglia’s condition had been relatively treatment resistant, that Mr. Bottiglia had required an extended period of time off work, that it was his clinical judgement that a return to the current workplace would place Mr. Bottiglia at serious risk of relapse, and that Mr. Bottiglia would lose the gains that he had made so far during his time with Dr. Levine.  Dr. Levine indicated that his opinions were based on the regular one-hour meetings he had been having with Mr. Bottiglia over the prior ten months.

Five months later in August 2012, after all of Mr. Bottiglia’s sick days had been used, Dr. Levine stated that he believed that Mr. Bottiglia would be able to return to modified work duties sometime in the next two months.

About three weeks later, Dr. Levine provided a “Five Point Plan for Resumption of Career” that provided for a return to work.

In these circumstances, the employer took the position that a second medical opinion was warranted and requested that Mr. Bottiglia undergo an independent medical examination.

This request was contemplated under the employer’s Guide to Workplace Accommodation for Employees which provided in part that “The Principal or Supervisor or other employer representative has the right to request additional information from the employee when there is insufficient information provided by the employee relating to a request for accommodation”. In addition,”Where … the Terms and Conditions of Employment permit, the employer may request (through the Human Resources Department) a ‘request for a second medical opinion’ where the employer has been unable to obtain from the employee’s own health practitioner information concerning the employee’s own limitations and/or restrictions on his/her essential duties of his/her position, the employee’s medical prognosis related to the accommodation request and any recommendations with respect to the accommodation or where, in the opinion of the employer, circumstances warrant a second opinion.”

Mr. Bottiglia refused when the parties could not agree on the information that would be provided to the doctor conducting the independent medical examination and commenced a human rights complaint.

The Decision

An adjudicator appointed under the Ontario Human Rights Code concluded the employer had the right to demand an independent medical examination in the circumstances.

This decision was upheld by the Divisional Court, and Ontario’s Court of Appeal.

For more information on our October seminar which discusses an employee’s duty to accommodate an employee’s disability, click here.

Lessons to Be Learned

1. Bill 148 which is currently before the Ontario legislature would, if passed into law, prohibit an employer from requiring medical notes to confirm illness in limited circumstances.
2. An employer should consider adding a term to its employment contract giving it the explicit right to require an employee to submit to an independent medical examination in certain circumstances.
3. An employer has the right to demand that an employee requesting accommodation submit to an independent medical examination in limited circumstances. The issue in these cases is often resolving the competing interests of an employer’s right to information in order to manage an accommodation process and employees wanting to restrict access to their medical information on the basis of personal privacy.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]