When an employee takes medical leave, employers must carefully balance operational needs with their legal obligations. In Ontario, a medical leave of absence is protected under the Human Rights Code and the Employment Standards Act. Improper employer conduct can result in significant legal consequences.
Understanding how to communicate, request information, and support employees during medical leave is critical to avoiding claims of bad faith, discrimination, or harassment.
Quick summary
Employers in Ontario must act in good faith during an employee’s medical leave by respecting the employee privacy, avoiding coercive behavior, and complying with human rights and employment laws. They may request limited medical information to aid in return to work plan and accommodation but cannot demand a diagnosis or pressure employees to return prematurely.
What are an employer’s obligations during medical leave?
In Ontario, employers must act in good faith during an employee’s medical leave, respect privacy rights, and comply with obligations under the Human Rights Code and the Employment Standards Act, 2000.
Case study:
In a recent Quebec case, a judge ordered that an employer pay $30,000 in moral damages for engaging in bad faith conduct and an additional $25,000 for Charter violations.
The employer’s bad conduct included threatening legal action against an employee, attempting to contact the employee’s physician to pressure him to change his medical diagnosis, and filing a police report alleging that the employee’s medical leave and reasons for leave were fraudulent.
In making the decision, the court found that an employer must be held accountable for its abusive behaviour towards an employee.
Key legal risks for employers
- Bad faith conduct
Employers must not engage in conduct that is:
- Abusive
- Coercive
- Retaliatory
Courts will penalize employers who act aggressively, or undermine legitimate medical leave.
- Violating employee privacy
Employers are entitled to limited medical information, including:
- Medical note or documenatin confirming medical leave
- Expectation of duration of leave based on diagnosis
- Functional limitations to establish accommodation needs
Employers are not entitled to:
- Medical diagnosis
- Detailed medical history
- Reprisal and discrimination risks
Employers should not:
- Threaten employees with legal action
- Demand that they return under threat of termination
- Pressure them to return early
- Accuse the employee’s medical professionals of fraud
- Undertake any other forms of reprisal or inappropriate actions
These actions may violate human rights laws and lead to liability.
What information can employers request?
Employers can request the following information for medical leave:
- Medical confirmation of leave
- Expected absence or return to work date
- Functional limitations
Employers cannot request the following information for medical leave:
- Diagnosis details
- Direct contact with employee’s medical professional
Best practices for employers during employee’s medical leave
- Reprisal and discrimination risks
- Communicate respectfully
- Avoid adversarial or accusatory language
- Support employee recovery
- Maintain confidentiality
- Protect medical information
- Limit internal access to sensitive information
- Ensure employee privacy
- Focus on accommodation
- Plan for return to work
- Adjust duties based on limitations
- Avoid aggressive tactics
- Do not threaten legal action
- Do not accuse employee of dishonesty
- Do not accuse medical professional of fraud
Frequently asked questions:
Can an employer contact an employee’s doctor directly?
No. Employers cannot contact an employee’s physician directly without consent, as this violates privacy laws.
Can an employer ask for a medical diagnosis?
No. Employers are only entitled to information about functional limitations and the need for leave, not the diagnosis
Can an employer terminate an employee on medical leave?
In some cases, termination may be lawful but doing so improperly or in bad faith can lead to claims for damages or discrimination.
What happens if an employer acts in bad faith?
Employers may be required to pay moral damages, punitive damages, or compensation for human rights violations.
Conclusion:
Medical leave is a legally protected right under the Human Rights Code.
Employers who engage in bad faith conduct may face significant moral damages and punitive damages if they are found to have breached their duty of good faith and their obligations under human rights laws.
By acting in good faith, respecting privacy boundaries, and focusing on accommodation, employers can reduce risk while supporting employee well-being.
How can Whitten & Lublin help?
If you are dealing with a workplace issue involving a medical leave, the employment lawyers at Whitten & Lublin can help you understand your rights and obligations.
Whitten & Lublin employment lawyers provide advice and guidance on workplace policies, employee accommodations and dispute resolution.
Contact us online or by phone at (416) 640-2667.
Author – Abby Leung
