My recent article - “Will B.C. Soon Be Saying R.I.P. to the Doctor’s Note?”, https://bit.ly/4jTjfY4 - predicted that our provincial government would amend the Employment Standards Act (ESA) to ban employers requiring a note to justify employees’ medical absences. That prediction is now in the process of coming true.
B.C.’s Ministry of Labour recently advanced its Bill 11, the Employment Standards Amendment Act, to have that effect. At the time of publishing this article, Bill 11 has received Royal Assent and it appears it will come into effect by fall, 2025.
In essence, Bill 11 amends the ESA to state that an employer must not request, and an employee is not required to provide, a doctor’s note to justify a short-term, health-related leave.
Backing Up A Step
It’s perhaps worth repeating that, a few years ago, B.C.’s government added statutory sick leave (paid and unpaid) to employees’ ESA entitlements. By virtue of those additions, most employees in B.C. are now entitled to 5 paid sick days and 3 unpaid sick days, each year.
Prior to those changes, there was no statutory requirement in B.C. to provide sick days to employees; the topic was governed solely by employers’ policies. My own experience was that larger employers tended to provide some form of annual (paid) sick leave but most smaller employers did not.
There is no doubt in my mind – though I presently have no statistics to support this – that the availability of statutorily-protected sick leave (paid and unpaid) has increased the rate at which employees call in sick. I have, for instance, seen numerous instances in which employees quickly use up their 5 paid sick days at the beginning of the year, effectively treating them as paid “personal days” to be taken sooner rather than later.
Whether the introduction of ESA-protected sick leave triggered the debate about employers’ desire to have a doctor justify a medical leave is beyond my scope of knowledge, but the two developments do seem suspiciously coincidental. In any event, the justification for the new restriction on obtaining a doctor’s note for short-term medical absences has commonly been attributed to the need to free doctors from the administrative burden of producing such notes.
As Always, There’s A Gap
It all sounds fairly simple… employers will not be able to require employees to produce a doctor’s note to justify a short-term absence. But, you may ask (especially if you are an employer), what exactly is a “short-term” absence?
That’s the gap; the amendments to the ESA do not define “short-term”. Which, for the moment at least, leaves employers guessing.
This means we’ll all be waiting for months or years for B.C.’s Employment Standards Tribunal to issue decisions lending some meaning to “short-term”. My own guess is that the Tribunal will ultimately decide that any medical leave which is limited to the ESA-protected 5 days (paid) and/or 3 days (unpaid) leave will count as “short-term”.
But, the reality is that – barring a policy pronouncement on that topic – it will likely be years before the Tribunal will be in a position to issue a clarifying decision. In the meantime, employers and employment lawyers will be left somewhat fumbling around in the dark. (On this topic, I’ve been waiting for several years for the Tribunal to decide whether employers can, when terminating an employment relationship due to excessive absenteeism, rely upon the ESA-protected sick leave as part of the employee’s overall pattern of excessive absenteeism.)
Is The Sky Falling?
So, we have a pending ESA rule that employers cannot demand a medical note to justify a short-term medical absence. How big of a problem is that?
My sense is that some (very) hard-line employers demand a medical note from employees in relation to all medical absences, regardless of length. Those employers will undoubtedly feel their scope of action is unduly constrained by the new rule.
But, most (reasonable) employers don’t demand a doctor’s note for medical absences having a duration of only a day or two. In part, the reason for that is practical; most people cannot get in to see a doctor on such short notice and so they end up going in after the fact and the doctor is left in the position of diagnosing a transitory illness that has already resolved itself. In those circumstances, the doctor’s note really achieves nothing more than to create work for the employee and the doctor.
There may be instances in which it is desirable to compel the employee to visit a doctor even if the medical absence is brief. This might be the case, for instance, if the employee has a high rate of absenteeism and the employer is attempting to “crack down” on that conduct. In these instances, the new ESA rule may well have a limiting impact on the employer’s scope of action.
In the great majority of instances, however, my own feeling is that the new ESA rule won’t have much practical impact. It may embolden employees to take more sick days (knowing that their doing so cannot be challenged), and we’ll see if that’s the case.
But, most importantly, the new ESA rule will not prevent employers from managing longer-term medical leaves. These are the types of medical leaves for which the employer has a vested interest in receiving periodic updates – from a doctor – regarding the employee’s medical situation and the prognosis for his/her return to active duties.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.