Sick Notes and Your Employee Rights in Alberta

If you fall ill or are injured and cannot work, it’s important to understand your rights and responsibilities under Alberta’s employment laws.

Sometimes, employee privacy rights clash with employer rights. This is often the case with sick notes when an employee asks to take sick leave.

Sick notes are medical certificates provided by doctors. These official documents state that an employee is ill or injured and needs a certain amount of time off work and/or needs modifications to the workplace to return to work.

On the one hand, employees have the right to privacy over their medical status. On the other, employers need to know whether sick leave claims are valid.

Let’s look a little closer at how these competing rights over sick notes play out in the workplace in Alberta…

Can employers ask for sick notes?

Employers in Alberta generally have the right to request a doctor’s note in the following two situations:

1. When an employee declares absence from work due to illness.
2. When an employee returns to work and requests that the employer makes accommodations for an illness, injury or disability.

To some extent, the employer’s reasonable right to request a sick note trumps the employee’s right to privacy in these situations. However, there are strict limits to the rights of employers to know specific medical information about their employees.

The medical information requested must:

• Relate to the workplace and the employee’s specific job duties.
• Be relevant to the period of absence due to sick leave.

The types of information that employers can request include:

• The expected length of absence due to the illness/injury/disability.
• Whether the absence is temporary or permanent.
• Whether any workplace or role modifications would assist with a return to work.

According to Alberta’s human rights laws, employers do not have an unconditional right to full disclosure of an employee’s medical situation.

Employers must, therefore, refrain from requesting information that is irrelevant to an employee’s job duties. They should not request past medical history information about an employee or expect a medical diagnosis.

Can employers ask for a second medical opinion?

Provided the doctor who supplies the sick note is a qualified medical professional, your employer must accept the opinion stated and has no right to seek a second opinion.

There is a caveat to this, though. If you signed an employment contract with a clause stating that employees must go to a specific doctor, that instruction should be followed, and the sick note should come from that doctor.

Do you have the right to refuse a sick note request?

In Alberta, employees who have been with the same company for at least 90 days can claim unpaid sick leave for up to 16 weeks per calendar year. Your employer has the right to request a sick note for any period of sick leave, and you should think carefully before refusing to provide one, as it may count against you.

For example, if you later need to return to work with accommodations made for your illness, injury or disability, your employer has a duty of accommodation to return you to your role as reasonably as possible.

This will likely first require proof from a doctor that the modifications are necessary — in the form of a sick note. If you refuse to provide it, the employer could argue that you are failing to participate in the “accommodation process”.

Also, if you want to claim certain protections under Alberta’s Employment Standards Code for job-protected leave, the absence of a sick note may harm your claim.

If you provide a sick note and your employer fails to make the necessary changes to accommodate your condition or actively takes steps to make your position untenable (by making substantial changes to your role without your consent because you took sick leave), you may be able to claim compensation.

If you have a specific reason for refusing to supply a sick note to your employer, it’s best to seek legal advice about your position and your options before acting.

Can you be fired for not providing a sick note?

Under Alberta’s termination without cause laws, employers can fire employees for any reason if the following also apply:

• They provide notice or full severance pay in lieu of notice.
• They do not use discriminatory reasons for the dismissal.

If either or both of these do not apply, the dismissal may be unlawful or wrongful and the employee can claim compensation for the termination.

If you are fired because of a discriminatory reason, your rights under the Alberta Human Rights Act may also have been breached.

Employers also sometimes fire employees for cause if they refuse to provide a sick note on request. The employer may claim that the refusal is insubordination or dishonesty but would need to tread carefully as an employee may claim that the reason for the dismissal was the sick leave itself — which could be viewed as a breach of human rights.

What if your employer asks you to use vacation days as sick leave?

Asking an employee to use vacation days as sick leave is an acceptable practice — but you cannot be forced to do so under Alberta employment law.

Vacation days should be mutually agreed upon between the employer and employee, so if both parties agree to use vacation days for sick leave, this should be acceptable.

If you are asked to use vacation days as sick leave against your will, get the request from your employer in writing. An employer must give you at least two weeks’ written notice of the start of vacation.

What is Alberta’s casual illness leave directive?

Employees who are not covered by the Employment Standards Code may be covered by Alberta’s casual illness leave directive.

This could include public service managers and other opted-out or excluded employees. The legislation covers certain entitlements and administrative requirements if these employees take sick leave.

Unionized employees should refer to their collective agreement for the rules concerning sick leave.

If you have any questions about your legal rights as an employee, an employment lawyer from Taylor Janis LLP in Alberta can advise you during a confidential telephone or video consultation.

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