Requiring a doctor’s note immediately

Reasonable time to expect a doctor's note for an employee's absence
By Tim Mitchell
|Canadian Employment Law Today|Last Updated: 01/08/2014

Question: If a doctor’s note is required from the employee for a one-day absence, can the employer require the note to be provided and dated the same day the employee is absent?

Answer: Practically speaking, not really. The concern underlying the question is understandable. Accommodation requires an obligation by both the employer and the employee. While an employer must accommodate a physical disability to the point of undue hardship, the employee has a corresponding duty to substantiate the claim that she suffers from a disability requiring accommodation.

The employer is entitled to this proof in the form of objective medical evidence. What, then, should prevent an employer from insisting the employee undergo evaluation on the day of the absence, when the examination results will be most reliable?

Most employees who are home sick use the time off to rest and recover. An employer looking to enforce such a policy will inevitably face an employee claiming she is too sick to leave the house.

In the face of such protest, an employer is unwise to insist she attend the doctor’s office anyway. Another practical issue sure to arise is the difficulty for the employee of arranging to see a medical professional that very day. Both of these claims are hard to refute and make such an arrangement difficult.

Realistically, not much is lost from the lack of feasibility of such a policy. It is true the medical evidence obtained later will be outdated by a day or two — or possibly more — and therefore more subjective than the employer would prefer.

However, the employer may actually be doing itself a favour by giving some leeway on this requirement. Considering the accommodation duties on the part of the employer, it should steer clear of any appearance that it actually contributed to an employee’s deteriorating health, such as by insisting that the employee, no matter how ill, attend a doctor’s office during a one-day absence — not to mention potentially adversely affecting the employee’s emotional state, which can be tied to her physical health.

This could be highly prejudicial later on in the event the employee’s health and the employer’s response become issues of contention.

Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@nortonrosefulbright.com.