Interpretation: sick leave, article 12.03
1. The proof of illness and the medical certificate
Article 12.03 is clear: the employer can require a medical certificate. However, logic and jurisprudence establish the occasions when the employer can require it. Thus, it would be impossible for the employer to ask the employee, at the time of his return to work, to provide a medical certificate. The employee, obviously not being sick at the time of his return to work, cannot go to a doctor and have a note made that he was sick in the days which preceded.
The medical certificate will thus have to be required at the time of the call of the employee to report his illness, or during the illness.
Moreover, an employer can advise one, some or all its employees, indicating in writing the guidelines of the company in the case of illness. However, these guidelines must follow two criteria:
- They cannot be excessive or unreasonable;
- They must respect private life, as stipulated in the Charter of Human Rights and Freedom of Québec.
In fact, jurisprudence shows that even if the employer has the right to inquire about the reasons for the employee’s absence, he cannot exercise this right unreasonabily. Thus, he can’t require a medical certificate or a proof of illness for all absences, regardless of the circumstances. Some particular situations may require proof of illness. For example, in the case of an employee with a record of absenteeism or frequently absent the day before or after a holiday, it would be considered reasonable to require a proof of illness.
As for private life, the employer cannot require to know the nature of illness or the motive for consultation. It would go against article 5 of the Charter of Human Rights and Freedoms of Québec: “Every person has a right to respect for his private life”.
de volaille de Ste-Rosalie (C.S.N.) vs Olymel Flamingo
Teamsters Québec, Local 931 vs Médis,
services pharmaceutiques et de santé inc.
2. Work-related accident in another employment
What happens when an employee has a work-related accident on his day job (which is not maintenance) and who cannot work at his second employment which is maintenance, in the evening?
This case is envisaged in article 71 of An Act respecting occupational health and safety. This article provides that if the employee occupies more than one employment, the calculation of the allowance is done on the basis of the most remunerative employment.
In our example, if the allowance were calculated on the basis of use of the day employment only, it would be then permissible for the employee to claim the payment of hours of illness from his employer in maintenance.