Generally an employer is entitled to have sufficient evidence to confirm an employee’s request for sick leave benefits. It is entitled to know of the fact of a medical absence, the expected duration and the particulars of any likely accommodation which may be required upon the employee’s return. ¹

There are no common law cases on this subject. The arbitral case law may be a good guide.

In the arbitral context, the issue of what information to which the employer is entitled will depend upon the collective agreement in place and the legislative requirements. Absent a statement to the contrary, a diagnosis or a description of the symptoms or treatment plan is not required.

In the 2007 arbitral decision cited above, the arbitrator concluded that the employer will generally be entitled to less information at the initial stage of the absence than at a subsequent stage and that in the absence of an agreement which says otherwise, the employer is entitled to know only that the employee is unable to work due to illness, the expected return date and what limitations may be placed on the return to work. A medical document to this effect will suffice.

In that particular case, the collective agreement required a proof of a disability “such as a doctor’s certificate”. The arbitrator agreed that it was reasonable for such a certificate to include a general statement of the nature of the medical issue without a diagnosis or symptoms.

It is only where the employer has a statutory right or a contractual one for more information or where the employer reasonably suspects a misuse of the medical leave, that it is entitled to more information.

These rules were set out for the disclosure of medical information in such a circumstance, presuming  the absence of a statutory or contractual requirement to the contrary:

1. The medical report should be limited to a statement that the employee is absent from work due to illness or injury; and/or
2. The employee has and is following a treatment plan, without reference to the details of the plan itself;
3. The expected date of return to work; and
4. What work the employee can or cannot do.
5. In addition, the consent must be “both focused on the particular purpose and limited to the particular medical professional”. The consent should not include return to work accommodation considerations other than whether there are likely to be any restrictions on the anticipated return to work date.

A consent which the decision describes as “a basket consent” which authorizes anyone whom the employer may choose to ask for medical information is not appropriate. Equally a consent with a future effect is not required to be given.

Every contact for medical information should be through or at least with the consent of the employee. Each consent should be limited to a singular instance, a singular source and limited to the completion of the specific information as described. An undertaking to keep all such information confidential will alter none of the above.

This decision was revisited by in a further case by the same arbitrator, Mr. George Surdykowksi ²

In that instance, the union submitted that medical doctors may be unwilling to take the time to sufficiently describe the nature of an illness or injury without unnecessarily disclosing a diagnosis or other confidential medical information. Further once such a report had been submitted by the physician to the employer, there could be no guarantee as to the proper use of its contents. The union’s submission, hence, was that the report should state that the employee is ill or injured and nothing beyond this. No amendment was made to the earlier decision. The employee was ordered to provide a medical note which described the general nature of the illness or injury, without technical medical details, diagnosis or symptoms.

Based on a 2005 Divisional Court decision, ³employers are permitted to request medical information to ensure that the employee can safely perform his or her duties and that there is no risk imposed to others. One would expect that if accommodation is requested, the nature of the restrictions and likely time period of the duration would also be required.

On the facts of that case, the arbitrator’s order that the grievor submit to an independent psychiatric assessment was set aside as unreasonable, particularly given that her mental state was not related to her medical absence.

There is no common law on this subject. It is expected that the common law rule will be similar to the above.

Where there is no short term disability coverage in place, presuming the employee qualifies, ⁴,employment insurance benefits due to sickness may be obtained. ⁵.