We’re suspicious of a doctor’s note. Can we challenge its validity?

Are we within our rights to pursue this and require that the employee have the physician complete a more detailed medical certificate?

Stuart Rudner
Question: Our collective agreement requires that an employee “on request from the employer” provide proof of illness or accident from a qualified medical practitioner that is satisfactory to the employer. We recently received from an employee (who has been put on notice, due to her high absenteeism, that she must provide this proof of illness every time she is off sick) a medical note that is somewhat suspect. The date on the note is the same day she returned to work (not the day of illness), the physician’s name at the top of the note has been whited out. There is a stamp of a physicians signature at the bottom, and the “date” of absence due to medical reasons was originally written in as the same date at the top of the note but has been written over to reflect the date of absence.

Are we within our rights to pursue this and require that the employee have the physician complete a more detailed medical certificate? Can a physician “certify” that an employee was absent due to medical reasons on a specific day if he did not see the patient until the next day?

Answer: Like teachers, HR professionals sometimes have to deal with false or suspicious notes regarding absences or tardiness (although at least they don’t have to deal with people trying to get out of gym class). The question, of course, is how far you can go to ensure that documentation in support of an absence is legitimate.

Given that you are governed by a collective agreement, the wording of that agreement is crucial. Based upon your question, and given the suspect nature of the note that has been tendered, it is likely that you would be entitled to request further, more satisfactory documentation. So long as the request is made for legitimate reasons, and in a respectful manner, there should be no concern.

At a general level, many employers have policies which require medical documentation “on request” or something to that effect. This provides some discretion to the employer, which is wise given that it would be decidedly inefficient and onerous to require a doctor’s note for each and every absence or late arrival. In fact, the requirement of a doctor’s note often has the unintended effect of increasing time off work, which is certainly not in the best interests of any of the parties.

When exercising their discretion to require medical documentation of an absence, employers should be careful to act reasonably and in good faith. Obviously, they should comply with the provisions of any existing agreement or policy.

If the governing agreement or policy provides discretion to request documentation, employers should be careful not to arbitrarily discriminate against any individuals or groups. Consistency is paramount, and any diversions from standard practice, without a legitimate reason, can form the subject of a claim of bad faith or discrimination.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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