Amongst the changes ushered in by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, is the provision of two paid days of “personal emergency leave”. For most people, this translates into two paid days of ‘sick leave’.
Although previously provided as subsection 50(7), newly minted subsection 50(12) of the Employment Standards Act, 2000 will provide that, “Subject to subsection (13), an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”
The catch is newly added subsection 50(13), which provides that, “An employer shall not require an employee to provide a certificate from a qualified health practitioner as evidence under subsection (12).” Read: an employer cannot require an employee to produce a doctor’s note in order to prove that the employee was entitled to take such paid sick leave / personal emergency leave.
This got me thinking, if employers cannot ask for a doctor’s note, then what qualifies as “evidence reasonable in the circumstances”.
When I threw this question up on my twitter account, I got the following response:
Selfie while holding a thermometer. Scan of pharmacy receipt for extra-strength Advil. Delivery of passed kidney stone to designated HR representative. #manyoptions
— Oscar Strawczynski (@FeldmanLawOscar) December 14, 2017
The comment about a “selfie while holding a thermometer” reminded me of my commentary on former subsection 50(7), about which I wrote in my post Entitlement to Bereavement Leave in Ontario. In that post, I commented on the infamous George Costanza casket selfie, pictured at the top of post and the decision of Labour Arbitrator Peter F. Chauvin in the acse of Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175, 2012 CanLII 95768 (ON LA).
In that case Arbitrator Chauvin considered what constituted “evidence reasonable in the circumstances” and held as follows:
[27] Determining what is “reasonable in the circumstances” requires a balancing of the rights and the interests of both the employee and the employer. The employee has a statutory right to the emergency leave. The employer has the right to operate its business in a productive manner. Both the employee and the employer must comply with the Act, and have an interest in working together harmoniously to ensure that the emergency leave provisions are used properly and productively. Ideally, employees and employers will work cooperatively to ensure that this goal is achieved. Achieving this goal is optimized when the employee provides the best evidence that is reasonably available to establish that he is entitled to a personal emergency leave.
[28] The evidence requested should also bear proportionality to the emergency leave. For example, if the emergency leave is for only one day, and there are no other extenuating circumstances, the employee’s own statement may be sufficient, and it may not be reasonable to require an employee to incur the time and expense of obtaining other evidence, such as a medical certificate, to verify his mother’s illness. However, where there are grounds to question the legitimacy of the request, it may be reasonable to require evidence greater than the employee’s own statement.
[29] An example of reasonable, balanced and proportionate evidence is found in Tilbury Assembly, in which Arbitrator Crljenica ruled, on the particular facts of that case, that it was not reasonable for an employer to require a note from a doctor to verify that an employee had a migraine, because it was not necessary for the employee to see a doctor for the migraine, but rather a note from a pharmacist and a receipt for migraine medicine was sufficient “evidence reasonable in the circumstances”. Similarly, there may be circumstances in which it is reasonable for the employee to provide other evidence such as parking receipts as proof that he was at a hospital with his mother.
[30] Where there are grounds to question the legitimacy of the request, and it is reasonable under the circumstances for the employer to request and the employee to obtain a medical note, an employer may request a medical note from the employee to verify the mother’s illness. If the mother will provide her consent for the release of this information, it will be the best evidence to verify the entitlement to the emergency leave. It is in the best interests of the parties, and it promotes good labour relations, to verify the illness in this manner, if it is reasonably possibly to do so. The employer is not entitled to a detailed medical certificate, stating the diagnosis or treatment plan, but rather may only request a note verifying the mother’s illness.
[31] However, if the mother will not provide her consent for the release of this information, or if on the facts of the case it is not “reasonable in the circumstances”, or it is disproportionate to request such a medical note, the employer will have to consider what other evidence is “reasonable in the circumstances”. It may be that there are no extenuating circumstances, and the mother's illness did not require that she be seen by her doctor, and for these reasons, as in the Tilbury Assembly case, it is not reasonable to require the son to obtain a doctor's note to verify her illness. In some cases there may be no other better and available evidence than the employee providing his own statement or attestation confirming that his mother was ill.
[32] It is in the best interests of the employer to act as reasonably as possible in determining what evidence it believes is “reasonable in the circumstances”, and for the employee to act as reasonably as possible to provide the best evidence he can provide, to establish that he is entitled to a personal emergency leave due to his mother’s illness. Ultimately, whether the employer is requesting evidence that exceeds “evidence reasonable in the circumstances”, or whether the employee is failing to provide evidence that is “reasonable in the circumstances”, is a question of fact and law that will have to be decided, if the parties cannot resolve the issue themselves, by an adjudicator.
[33] This is the best answer that I can provide to the generic question that has been put to me. I have not been given any information regarding what evidence Access Alliance asked the Grievor to provide, or what evidence the Grievor did provide to Access Alliance. In the absence of this information, I cannot provide any specific rulings upon whether Access Alliance or the Grievor violated Section 50(7). However, I trust that the principles set out of this Award will provide assistance to the parties in resolving any outstanding issues that they may have regarding Section 50(7).
Commentary
In my earlier post I commented on the potential changes to the law. Well, those changes are now here. While the stipulation about “evidence reasonable in the circumstances” remains, the amount of evidence that can be required is now curtailed. Does this mean that employers cannot still ask that employees produce a doctor’s note? I don’t think so. What the law means is that employers cannot punish employees for failing (or refusing) to produce one. So, practically speaking, the notion is dead.
Will selfies be the next form of evidence? Given the ubiquity of cell phone cameras, it’s not a bad idea. -
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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