Amendment To Vitiate Documentation From A Healthcare Professional For Leave
During the COVID-19 pandemic, many laws have been amended in order to protect and aid Canadians. One law that has been amended regarding labour and employment is the requirement of healthcare documentation to be granted leave as per the Canada Labour Code. Traditionally, an employee may only exercise their entitlement to and shall be granted a leave of absence if a certificate or documentation from a health care practitioner was provided to their employer. With COVID-19 changes, an employee may still be granted leave even if a certificate or documentation is not issued by a health care practitioner. Employers can, however, demand evidence at such a reasonable time but the evidence cannot be from a medical professional.
Many may argue that this amendment will allow numerous people to be granted leave without justification. They may argue that without needing certification from a healthcare professional, employees may take advantage of this amendment and request leave without truly needing it. The same argument took place in numerous law schools across the country when it was announced that accommodations for exams were to be given flexibly without paperwork needing to be provided.
Although these points have merit, and there may, in fact, be some people who take advantage of the new amendment, given these uncertain times, there are various positive reasons for this amendment. First, it is currently more difficult to go see a healthcare professional unless you go to the hospital. Many general practitioner offices are shut down and only taking appointments by phone. Although this is the most realistic alternative for these offices to pursue, it becomes much more difficult for patients to obtain documentation and truly explain to the physician their problem over the phone. Additionally, many medical offices do not email documents. They either fax or mail. Many people no longer have fax machines in their house and given the current situation and the overload put on postal offices, many documents take over a week to receive in the mail, even if it is just being mailed from the city over. In other words, even if you are able to overcome all the first challenges, contact a physician and have them provide documentation, just being able to get the documentation is a different contest on its own. Secondly, many people are being affected by COVID-19 in ways that simply cannot be recorded in a documentation. Many employers often require documentation as proof that you are affected in such a way that hinders or prohibits you from being able to work. The reasons may be mental, but most of the time it is physical. Most non-physical reasons for leave are traditionally a death of a loved one or the arrival of a newborn/adoption/foster care. With COVID-19 in play, the reasons to be granted leave continue to grow in ways employers have never seen before. Employees may be living with vulnerable individuals and going to work puts those vulnerable individuals at risk every day. Employees may be living with a front-line worker and may themselves be at risk and need to self-isolate in order to protect others. There is no doubt employees who have children home from school are also in an unprecedented situation. These children will require to be homeschooled and entertained. It is also difficult to explain to children what COVID-19 is and what is happening around them, as many of their daily routines have been changed and they are too young to understand the implications of this pandemic. These children must be reassured by their parents, and this is difficult for parents to do as children are young, vulnerable, and their minds still need to be protected. This will likely hinder or fully prohibit an employee from performing their duties.
All these reasons cannot be certified or documented by a medical healthcare professional given that they are non-traditional reasons, but very realistic with COVID-19 playing a role in everyone’s lives. These reasons are likely to be classified under “leave with pay for other reasons”. Employers have been given a lot of discretion but are encouraged to be flexible when employees ask to work from home or request leave.
There are restrictions, however, for employees who choose to pursue situations that will force them to self-isolate. For example, employees who choose to travel domestically and who may be required to self-isolate upon their return will not be entitled to “other leave with pay”. This will hopefully alleviate malicious actions of those who endanger themselves and others, and then try to get a benefit from their wrongful actions.
Another interesting rule that has been put in play, as mentioned above is that employers can demand evidence (documentation) at such reasonable time (for reasons of leave) but the evidence cannot be from a medical professional. This rule is quite vague. It does not say who the documentation should be from but only that employers cannot require the evidence to be from a medical professional. Does that mean the documentation can be from a spouse, sibling, or even just a friend/roommate? This will likely open the floodgates of providing “evidence” from everyone and anyone who would vouch for you regardless of their qualifications. Additionally, this could potentially set a precedent for anytime one may not be able to easily and readily access the healthcare system, evidence for leave from just anyone may do.
There are reasons why this amendment is both good and bad, however, overall, the benefits outweigh the harm. Many employees are in very unprecedented, unique situations and are not able to provide documentation from healthcare professionals for various reasons. Vitiating documentation from a healthcare professional for leave puts ease on employees in these uncertain times. It is important to mention you will likely still need to give your employer a reason or an explanation when you request leave, you will not just automatically be granted leave, but the process has been amended to help employees apply during the COVID-19 pandemic. The amendments made, as of today, will be repealed on September 30, 2020.