By Howard Levitt and Puneet Tiwari

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Howard Levitt: Employers should beware of medical notes from Dr. Summeroff Back to video

While the Toronto District School Board showed record employee absenteeism this past year, other employers are also bracing themselves for staff shortages, particularly during the summer months, when sick leaves are often facilitated by notes from “Dr. Summeroff.”

Dr. Summeroff, a whimsical nickname for the often-unsuspecting physician convinced to write a medical note granting an employee time off for a month or more during the beautiful summer months. The employee then takes this extended leave for vacation, leaving employers scrambling to fill the resulting productivity gap until the “healed” worker returns in cooler weather. Remember: the test for medical absenteeism is not whether the employee is feeling less than 100 per cent and would rather remain home but whether they are genuinely medically disabled from working.

While there is no issue with employees who legitimately need time off as result of illness, the phenomenon of Dr. Summeroff presents a challenge for employers. Here are some strategies to address and potentially eliminate this behaviour:

Requesting medical notes

In Ontario, if an employee requires more than three consecutive days of sick leave, the employer may request a medical note, provided it is reasonable under the circumstances. In British Columbia, employees may take up to five days of paid sick leave, and a note from any doctor is usually sufficient. For longer-term illnesses, employers may request that the attending physician complete a Functional Abilities Form (FAF). This form outlines the employee’s limitations, enabling the employer to accommodate them and provides details as to precisely why the employee cannot work. Physicians are typically hesitant to fill out FAFs unless confident in their diagnosis, perhaps knowing that an employer disciplined enough to request an FAF is the sort of employer who may fire that employee and require the physician to attend court or arbitration to support their report.

Clarifying work-from-home arrangements

In the remote work era, rather than taking unpaid sick time, employees often obtain notes indicating they must work from home indefinitely. An FAF from the physician can clarify whether this requirement is necessary, allowing employers to recall employees to the office sooner if appropriate. Given how rare such work from home accommodations were before COVID, employers should treat such an accommodation with extreme skepticism.

Effective communication

Employers should maintain diligent communication with employees regarding the expiration of medical notes. If a note expires on a particular date, the employer should ensure the employee returns on that date or provides further medical proof or an FAF in advance.

Defence medicals

On some occasions, when there is reason to suspect the authenticity of the doctor’s note or that note simply does not deal with the issues at hand, an employer can require the employee to see a doctor of its choice to determine whether they are genuinely disabled from working.

Avoiding accusations

It is crucial for employers not to accuse employees of “faking” illness. Such accusations provide no advantage and can damage the employer-employee relationship and lead to constructive dismissal allegations or even to punitive damages. Instead, relying on the FAF allows employers to make decisions based on documented medical evidence, thereby avoiding unnecessary conflict.

Employers must proactively ensure that employees do not take advantage of lax rules so should follow up on sick notes diligently. By implementing these strategies, employers can better manage absenteeism and maintain productivity while supporting employees’ legitimate health needs.

Addressing absenteeism effectively requires a balance of empathy and firm management practices. By requesting appropriate documentation, clarifying work-from-home arrangements, maintaining clear communication, and avoiding unfounded accusations, employers can create a fair and supportive workplace environment. Ensuring employees do not exploit the system ultimately benefits both the organization and its workforce, reducing time lost to seasonal visits to Dr. Summeroff. After all, if the employer is diligent, both the employee and Dr. Summeroff will be reluctant to make and authenticate exaggerated sick leave claims.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Puneet Tiwari is a partner at Levitt LLP.