It is well established in the jurisprudence that employees have the right to maintain privacy regarding their personal medical information. However, employers also have the right to ask for doctor’s note in two common situations: i) when an employee declares that was absent from work due to illness; or ii) when an employee is on sick leave and wants to return to work.
Even though it appears to be unequivocal the situations when a doctor’s note can be required for an employee, there are many questions that can arise when the employer is asked to provide a doctor’s note.
- Can an employer require full disclosure of the employee’s disease?
As stated by the Alberta Human Rights Commission, employers do not have an unconditional right to full disclosure of the employee’s medical situation and, for that reason, the employers should refrain themselves to request information that is clearly irrelevant to the employee’s job duties.
In Peace Country Health v. U.N.A., 2007 CarswellAlta 2612, it was expressly stated that privacy is not only one of the values underlying the protections in the Canadian Charter of Rights and Freedoms, but it is also a fundamental Canadian value. Regarding privacy and the doctor’s note, it was recognized that:
“There is a special privacy interest which attaches to medical information. The doctor-patient relationship is one of the most private and medical information should receive no broader distribution than is reasonably necessary.”
Usually, the employer will be authorized to require general information, in order to certify that the employee is actually sick or to verify if the employee is able to return to work, such as, i) whether the illness is permanent or temporary; ii) what types of limitations an employee has; and iii) whether a disease or treatment can affect the employee’s ability to perform job duties.
Furthermore, excluding limited exceptions, the employer is not entitled to know the employee’s diagnosis or contact the employee’s doctor directly over the phone. In the specific case where the employee gives permission to the employer to contact his doctor, this contact should be made in writing.
Also, it is relevant to note that the information provided by the employee should only be released to staff who need it for a specific purpose. The employer is not allowed to make public any private information about the employee’s medical situation.
- Can an employer impose discipline on an employee for not producing a doctor’s note to justify an absence?
As enlightened before, employers have the right to require a doctor’s note to justify an absence from the work by the employee. Its purpose, in most times, is to ensure that a medical problem exists, and also if it would properly be identified and treated. Nonetheless, in normal situations, the employer cannot impose any discipline on employees if they are not able to respond to an employer’s request for medical information.
In Russelsteel Inc. and USWA, Local 5885, Re, 1992 CarswellAlta 1062, the board recognized that, based on principles of employee privacy and absent of specific contractual requirement to produce a doctor’s note, ”an employee cannot be disciplined for failure to respond to an employer’s request for medical information”.
However, it was stated that eventual failure to respond to a doctor’s note request may have negative consequences for the employee. The reasoning behind this decision was that, since the employer was denied the information he needs to evaluate the employee’s prospects for future regular attendance, this can result in eventual termination of the employment contract.
Based in this arguments, the board concluded that “1) an employer can ask an employee to bring a doctor’s note in a non-culpable situation; 2) the employee cannot be disciplined for failure to bring such a note; but, 3) failure to cooperate may ultimately imperil the employee’s job.”
- What can be the consequences of presenting a false doctor’s note?
Providing false doctor’s note to employers can result in serious consequences for the employee, including the imposition of discipline and also dismissal in some cases. As explained in Canada Safeway Ltd. v. U.F.C.W., Local 401, honesty and trustworthiness are two fundamental principles to the employment relationship:
“As stated in Delta Faucet “it is generally well established that the employment relationship must be characterized by honesty and good faith and when that element is lacking the relationship is severely impaired” (page 6, Quicklaw version). “
When the employee provides false justification to skip the work, that consists in a fundamental breach of the employment relationship, justifying in certain specific cases the termination. In the case mentioned above, the board expressly stated that “arbitrators have upheld termination as the appropriate penalty in circumstances when employees have provided knowingly false information to their employers when absenting themselves from work and maintaining their dishonesty in attempting to cover-up their original misdeed (Voith Fabrics; Delta Faucet)”.
In Canada Safeway Ltd. v. U.F.C.W., Local 401, the employee provided a knowingly false doctor’s note to justify his absence from the work during the long weekend. However, the board concluded that, although the employer had grounds for discipline, the discharge was too harsh a penalty in all the circumstances and should be set aside. For achieving this conclusion, the board considered some circumstances, such as the seniority of the employer, the fact that he has 15 years of service, and his discipline free record.
Therefore, it is clear that providing false doctor’s note to the employer can result in tragic consequences for the employee, for instance, discipline and termination, considering that this behavior can be seen as a fundamental breach of the employment relationship.
Please contact our experienced Employment Lawyers at 403-476-2011 or [email protected] to discuss your case. We are currently offering a promotional rate of $199 + GST for all employment related initial consultations up to one hour.
Carolina Albuquerque is a lawyer in Brazil who is currently pursuing her legal career to become a Canadian lawyer in the future. She has been accepted to the Law Program at the University of Calgary and will start her legal education in Calgary soon. She was a member of the team of lawyers that acted directly on Brazil’s greatest case of judicial bankruptcy, the one from Oi S.A, the third largest telecommunication company in Latin America. She is involved in volunteers programs that provide support for women. Her professional communication skills include a fluent level of English, advanced level of Spanish and native level of Brazilian Portuguese.
Once Jae had finished his J.D. at the University of Saskatchewan, he knew right away to follow his entrepreneur path and to start “Shim Law” in 2014. Jae has been growing his practices ever since – specifically in the fields of Employment Law and Family Law.
Jae is also a active member in the Korean community and frequently volunteers his time to help others. If you’re in need of a Korean lawyer, please book a consultation with Jae using the button below.