Suspiciously sick: when you can and can’t ask for more information

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A Nova Scotia decision this year shows employers they have the right to ask for more than just a simple sick note when employees take time off for medical reasons.
In the Halifax Herald v Halifax Typographical Union decision this year, the arbitrator upheld a 28-day suspension for an employee’s abuse of sick leave benefits, even though the worker had provided a medical note from her doctor for the relevant period.
The cause of the employer’s suspicion?  The “sick leave” covered the same period the worker had asked for as vacation leave, which was denied. She confirmed to her manager that she had spent some of that time in Florida, and when neither employee nor doctor came through with sufficient information, the employer suspended the worker for four weeks.
In general, employers are entitled to “prognosis, not diagnosis”, says Filion Wakely Thorup Angeletti associate Deborah Hudson. “A medical note isn’t carte blanche for an employee. If an employer has reason to believe that it’s not right for any reason, they can ask for further information,” she says.
Medical information is heavily protected by privacy law, but employers can ask for information such as the employee’s specific limitations, their time to recover and when they are expected to return to work. You are also entitled to ask for, and offer, accommodation. The employee may not be able to work in an area requiring manual labour, but could complete recording and computer tasks.
One issue, Hudson says, is that the medical system is overloaded and often doctors see themselves as the patient’s advocate. The firm often drafts letters to doctors asking for more information on behalf of their clients. “If someone’s continually away, that’s when it’s good for the employer to have specific questions in a letter because the doctor can’t avoid it,” she says.


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