Health and safety

Notable Exceptions: Medical Certificates and COVID-19

November 10, 2020

Requesting doctor’s notes (or more generally, medical certificates) is normal practice when employees require sick time. Employers want to verify that employees aren’t abusing the system, and check that employees can safely return to work after their illness ends. This second reason is far more important in the context of COVID-19, and screening for COVID-19 symptoms is required in many workplaces now. Ontario’s government has gone further, requiring screening measures throughout the province. Even so, many employers are still uncertain how to screen. What can you ask? How do you protect employee privacy? There are more questions employers have about medical certificates and COVID-19, so let’s walk through the basics.

For one thing, you can’t ask whether an employee has COVID-19. Employers don’t have the right to know an employee’s diagnosis, and that hasn’t changed, even with the pandemic. When screening people entering the workplace, you can ask whether they’re experiencing symptoms associated with COVID-19; you can’t ask whether they have the disease itself. The same rule applies when an employee returns to work: you can’t ask whether they still have COVID-19, but you can ask whether a medical professional has cleared them to return to work, along with any lingering restrictions that might apply.

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This distinction between diagnosis and prognosis—between what they have and what they can do—should sound familiar, as it’s the same distinction that employers should observe in any case of an employee returning to work after an illness. When in doubt, think about what you need to know, which is often much narrower than it first seems. You might think you need to know whether an employee has COVID-19, but why? In fact, all you need to know is whether it’s safe for the employee to return to the workplace, regardless of the reason.

Consider, for example, an employee who has an autoimmune disease that puts them at much higher risk of serious complications if they have COVID-19. If you asked this employee whether they have COVID-19, they would have to say no, but returning to the workplace would still be unsafe for them. Asking instead whether they can safely return to the workplace means they don’t have to disclose their medical information but can still stay safe.

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When employees take time off or you send them home because of illness, eventually they have to return to work. In these circumstances—even if you know the employee tested positive for COVID-19—you still can’t ask about their specific medical diagnosis. Instead, and you might be noticing a pattern here, ask the employee to provide clearance to return from a medical professional or public health unit. This isn’t the same as asking about their diagnosis, because all you want to know is that the employee can safely return to work.

The restrictions on what you can ask of your employees apply to tests, too, so you can’t require that an employee be tested, or that they provide proof of a negative test result, before they return to the workplace. You can require that a medical professional clear the employee to return to work, but that’s the extent of it. If the medical professional provides the clearance, this of course implies that the employee doesn’t have COVID-19, but the point is that you can’t require the employee prove a negative result, as doing so would mean demanding the employee’s private medical information, which employers cannot do.

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Employees are unlikely to object if you’re only asking for the necessary clearance, but it could still happen. What then? If an employee can’t or won’t confirm that they’re cleared to return to work, you can send them home for the 14-day isolation period. Depending on the circumstances and the jurisdiction, they might qualify for an unpaid job-protected leave, so check that. Some of these protected leaves themselves require documentation, but others don’t. Confirm what rules apply to your workplace and act accordingly.

Returning employees to the workplace can fill some workplaces with anxiety, especially since you can’t ask for a specific diagnosis. But employers can still require employees receive medical clearance to return to work, and that’s what really matters. The uncertainty around the pandemic makes us all want to know everything, but we still have an obligation to respect each other’s privacy and not stoke fears. Follow the normal return-to-work procedure, and only ask for information you really need to know.

 

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