The right to require sick notes is gradually eroding across Canada
Whether employers offer paid sick time or not, every employer in Canada faces challenges involving employees’ use of sick leave. While paid sick leave may create a stronger motivation for misuse, tension between an employer’s interest in confirming information employees provide and the employee’s privacy rights is a common challenge in Canadian workplaces.
In the past, employers have navigated employees’ privacy claims through adherence to principles arising out of privacy legislation and the common law. Generally, employers have been able to, and have done so, request confirmation from employees’ doctors that the employee’s claim for sick leave was legitimate when appropriate. The right to ask for such confirmation, however, is being eroded through legislation in multiple jurisdictions across Canada.
Saskatchewan, Ontario, and British Columbia have now all passed legislation that prevents employers from requesting sick notes from their employees in relation to short-term medical leaves. An attempt in Manitoba to pass similar legislative amendments during the 2015-16 legislative session failed to come to fruition.
The Ontario Legislature passed amendments regarding sick notes within Ontario’s Employment Standards Act in 2024. The Ontario changes removed the requirement of a sick note for unpaid leave for up to three days annually, requiring instead “evidence reasonable in the circumstances.” Reasonable evidence can include “self-attestation,” or confirmation from the employee themselves, that they were/are in fact sick. With no ability to go beyond the employee, Ontario employers are now dependent upon their employees’ honesty when confirming short-term sick leave due to illness.
Sick notes
The Saskatchewan Legislature’s recent Bill No. 5, which amends The Saskatchewan Employment Act, 2024, was granted royal assent on May 13, 2025. Once in force, employees will no longer be required to provide sick notes to their employers except under certain identified circumstances.
Saskatchewan’s amendments require employers to request a sick note from an employee in writing, and only in cases where the employee’s single absence exceeds five working days or the employee has had multiple non-consecutive absences of two or more working days in the previous year. Saskatchewan’s amendments leave open the question of how an employer is to respond to an employee with a history of numerous single-day absences.
In BC, the Employment Standards Amendment Act received royal assent on May 29, 2025, but certain aspects have yet to be clarified in forthcoming regulations. These amendments prevent employers from requesting sick notes from employees who take short-term sick leave. However, the definition of “short term absences” has been left to be defined in regulations expected to arrive in the fall of 2025.
Proponents of these changes argue the new sick note regimes allow employees to exercise a greater degree of autonomy and prohibit arbitrary sick note requirements that place an undue burden on employees who have to wait to see a healthcare provider for a sick note, the healthcare system that has to expend time and resources providing that sick note, and even the employer who also has an administrative role in the process. However, others have raised concerns about potential abuse of sick leave as a result of not requiring sick notes. It is likely that both sides are correct.
Statutory limits on sick notes
Saskatchewan can be used as an example of what the new statutory regimes around sick notes may prohibit or require. Saskatchewan employers will be restricted from asking for a sick note unless the employee has been absent for more than five consecutive working days or has been absent at least twice for two or more working days in the last 12 months. Additionally, when employers do ask for sick notes, the request must be reasonable with the understanding that it is for the purpose of accommodating the employee.
Concerns as to what is permissible under this regime and what sort of safeguards remain to prevent sick leave abuse are legitimate. The circumstances under which employers may attempt to contest the information being provided to them by employees who may not have met the thresholds for a request for a medical note set out in the legislation are untested at present. For example, can employers require sick notes when paying sick pay rather than simply granting time away from work? What effect will the new prohibitions have on existing attendance management or support policies - which may include references to requests for medical information and/or medical notes?
The interests being shielded by these new legal requirements are legitimate, but so too are employers’ interests in managing attendance and avoiding abuse of sick leave. The new amendments will require employers to rebalance these interests within their policies and procedures in order to forge a path forward which respects employees’ privacy rights, aligns with the letter and spirit of the new legal requirements, while also ensuring that the employer’s interests are respected and protected.
Robert Frost-Hinz is a partner in the labour and employment department at MLT Aikins in Saskatoon. Tye Hapke is an associate lawyer at MLT Aikins in Saskatoon.
