Can the employer require a medical certificate before paying sick leave hours to the employee absent due to illness?
Article 12.03 says that the employer can require a medical certificate. However, logic and jurisprudence establish the moment when the employer can require it. Thus, it will be impossible for the employer to ask the employee, at the time of the return to work, to provide a medical certificate. The employee obviously not being ill at the time of the return to work, cannot go to a doctor and obtain a recognition that he or she was ill in the preceding days.
The medical certificate will thus have to be required at the time of the call of the employee to report the 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:
- 1. They cannot be excessive or unreasonable;
- 2. 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".
Union employees must check with their union the conditions which are attached to the medical certificate because they can be slightly different.
Can the employer pay the employee who is absent following a work-related accident from the employee's sick leave hours?
At the time of a work-related accident, the first 14 days of absence must be paid by the employer at 90% of the net pay. This amount cannot be deducted from the sick leave bank of hours, since the Commission de la santé et de la sécurité au travail (CSST) refunds the employer. It is an indemnity for a work-related accident.
Does the employer have to pay the accumulated sick leave hours when there is a resignation, layoff or dismissal of an employee?
No. The accumulated sick leave hours are not payable. The only two situations where the employee has the right to receive these hours are:
when the employee is ill and that sick leave hours have been accumulated;
following the calculation of the excess sick leave hours at October 31 of each year. (For more information on the calculation of the excess, see the Employer's Guide or the Employee's Guide, section 3.3).
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