N.S. government may have to step into sick note controversy, says lawyer

The conflict between the rights of employers and workers over doctors' sick notes for medical absences might require provincial legislation to resolve, says an Ontario employment lawyer.

Recently, a Bedford, N.S., doctor called for the Nova Scotia government to ban the requirement for sick notes for absences under five days. Paul Young said he's concerned about the amount of information he has been asked to provide and also objects to the amount of time doctors spend filling out forms, especially in a province that suffers from a shortage of physicians.

Stuart Rudner, whose Markham, Ont., firm represents both management and workers, told CBC's Maritime Noon he's against the practice of demanding sick notes for every absence.

In those situations, sick notes don't even validate an employee's claims of illness.

"By the time they go to the doctor, the symptoms are gone and the doctor is really just taking the patient's word as to whether they had what they're experiencing," Rudner said.

He acknowledged there are sometimes blatant instances of a worker misusing sick time, such as those with "Facebook posts about them in [Las] Vegas or on a ski trip" that can trigger more invasive demands from a company.

"Employers know employees have a right to privacy, but they also have a right to monitor the workforce and address abuse of sick leave," Rudner said.

However, he said those concerns have to be balanced with the protection of individual privacy and workers' concerns about their health information being shared in the workplace.

What Ontario does about sick notes

The controversy came to a boiling point in Ontario about five years ago, Rudner said. But new laws only came into force at the beginning of 2018 and were replaced earlier this year. 

"They put in place new employment standards provisions, among them 10 personal emergency leave days. And it was a very clear prohibition on any requirement of a doctor's note," Rudner said.

After winning last year's provincial election, the Progressive Conservative government tweaked the rules around the sick note ban. The sick days did remain in the legislation, although the details have changed. 

"They are only allowed to ask for the time period covering the duration or expected duration of the absence, the date that the employee was seen by the health-care professional and whether they were examined in person or otherwise, so they can't ask for any more than that, they can't ask for a diagnosis," Rudner said.

Rudner said it is a small percentage of employees that abuse sick leave.

"The vast majority of employees don't take all the sick days they are entitled to and when they do take a sick day, it's because they're unable to go to work."

Rudner says he also hears from workers who are reluctant to provide details about their medical conditions.

"I often get this concern from our clients when they say, 'I don't want to submit a doctor's note or I don't want to submit other information because I don't know who's going to see it.' ... The same way I said that most employees don't abuse sick leave, I'll say most employers don't abuse confidential information."