On May 6, 2024, Ontario’s Legislative Assembly introduced Bill 190, the Working for Workers Five Act, 2024, which passed its second reading on May 16, 2024. If it passes the third reading, the Employment Standards Act, 2000 (the “ESA“) will be amended to prohibit employers from requiring a medical certificate (i.e. a sick note) from a qualified healthcare practitioner in order to qualify for statutory sick leave. This Bill represents the latest effort in a series of amendments aimed at strengthening workplace protections for employees, which will also impose additional obligations on employers.

Currently, the ESA entitles eligible employees to three unpaid days of leave annually for personal illness, injury, or medical emergency. For years, employers have been allowed to request “evidence reasonable in the circumstances” that the employee is entitled to the leave. Although the ESA did not explicitly state that a sick note constituted “evidence reasonable in the circumstances,” requesting a sick note is a common practice among employers.

Behind the changes

Organisations such as the Canadian Association of Emergency Physicians criticised the practice of requiring sick notes, stating that sick notes put an unnecessary strain on both patients and healthcare resources. Furthermore, requiring an employee with an infectious disease to leave their home and visit their family doctor or emergency department put other patients at risk. Therefore, this legislative change aimed to reduce the administrative burden put on physicians, allowing them to devote more time to direct patient care.

Key takeaways for employers

The amendment will prohibit employers from requesting documentation from a “qualified health practitioner” for the first three sick days an employee takes each year. Qualified practitioners include physicians, registered nurses, and psychologists.

However, this does not mean that employees can call in sick without a form of justification or evidence. More guidance is needed from the Ministry of Labour as to what will constitute “reasonable” evidence. In the Ontario government’s April 24, 2024 press release about the proposed amendments, it suggested employers use other tools, such as attestations, to support a medical leave. According to the ESA Interpretation and Policy Manual, which guides employment standards officers when investigating complaints of breaches of the ESA, in some circumstances, a receipt from a drugstore or a medical bracelet from a hospital may suffice.

It is important to note that the proposed changes will only apply to an employee’s entitlement of three unpaid days of statutory sick leave. Many employers may offer paid sick days in excess of three days. Furthermore, an employee may make a request for accommodation at the workplace in connection with a disability, for which an employer may need information from the employee’s doctor to assess the request and provide suitable accommodation. An employer will retain the right to request for sick leaves that exceed three days, as well as request supporting evidence in the context of providing disability-related accommodation at the workplace.