New sick leave legislation presents challenges for HR

The introduction of Quebec’s Bill 68 has ushered in a new era of leave management for employers across the province.

Coming into effect on Jan. 1, 2025, the legislation imposes new restrictions on employers’ ability to request medical documentation for short-term absences.

The new rules prohibit employers from requiring such documentation for the first three periods of absence not exceeding three consecutive days within a year, and they apply to various types of leave, including sick leave, caregiving leave, and family-related leave.

While the changes aim to ease administrative burdens and enhance employee privacy, they present significant challenges for HR teams and employers who must now rethink how to maintain workplace productivity and manage potential abuse, according to two legal experts speaking with Canadian HR Reporter.

“The change is quite drastic, honestly, and it scares employers a lot, within the reason, because it really changes how you administer your workplace,” says Daphnée Legault, associate at Fasken in Montreal.

“The amount of questions that we've had from employers [about this has been] through the roof — and with reason, because it completely changes how an employer can administer their employees' absences.”

Quebec’s new approach gives employees a lot of leeway for taking leaves without having really to justify them, she says.

“It really complicates how employers will deal with all of this, and how employers will ensure that their workplace still remains productive. So, there's a lot of questions that come out from this.”

Caroline-Ariane Bernier, partner at McCarthy Tétrault in Montreal, says a good portion of the market has already adjusted to the new rules because there is already a requirement in the law that any sort of documentation is not required if the circumstances don't warrant it.

However, there are employers in certain sectors where the new rules may prove more difficult, she says, “because at certain periods of the year, there are more unforeseen or unplanned absences, and there they have seen in the past more sick leave [where] they don't always know if it's legitimate or not.

“So, for them, one way to prevent that was by asking medical certificates. And now they can no longer do that, and so they are worried about whether or not the change in legislation will have an impact on attendance at work during those specific periods of times.”

Restrictions to documentation requests

The bill amends the Act respecting labour standards to prohibit an employer from requiring a document attesting to the reasons for an absence such as sickness, including a medical certificate, for the first three periods of absence not exceeding three consecutive days taken annually.

“In addition, no employer may require a medical certificate if an employee is absent to provide care to a child, a parent or a person for whom the employee acts as a caregiver,” says the legislation.

For these types of leave, the employer cannot ask for any type of document to justify the absence—not just medical certificates, says Legault, which complicates the situation.

Furthermore, employers with collective agreements that mandate medical certificates for short-term absences must comply with the new rules, as the legislation invalidates conflicting provisions.

“Even if it was negotiated [well], the bill doesn’t plan any transition for collective agreements… This means the changes are enforceable now, even in collective agreements.”

In December, Newfoundland and Labrador proposed the removal of the sick notes requirement under its Labour Standards Act. 

And as of October, Ontario has made changes to its medical note requirements. 

Defining ‘three periods’ of absence

One of the most pressing questions is how to track the three periods of absence permitted under the law over the period of a year.

Legault highlights the ambiguity: “Is it a year intended from Jan. 1 to Dec. 31, or is it a year starting from the first time the employee takes the leave?”

And what happens if the first period of absence is four days, or for the next period?

“It’s all this math and trying to figure out how it works, because when you read the bill, it seems pretty straightforward and simple, but when you apply real-life situations, it becomes much more complex,” she says.

Another area of concern is how Bill 68 interacts with statutory holiday policies. The Act respecting labour standards — and many collective agreements — state that in order to have the indemnity, the employee must be at work the day before or after the holiday, says Legault.

“If we have an employee who takes sick leave the day before a holiday… does that mean we still can’t ask for a medical note justifying the leave? Does this mean that not only does the employee get their day of medical leave, but they also get their statutory holiday without having to justify their absence?”

Revising workplace policies

While the legislation creates challenges, proactive steps can help employers navigate compliance while promoting accountability and maintaining productivity.

Employers should begin by updating leave policies to reflect the restrictions imposed by Bill 68. Clear communication is key to ensuring employees understand their responsibilities.

“Reviving employer policies is always something that employers could use [for employee absences] and good communications in explaining to employees why it is important that they be present… and they don’t take advantage of this situation,” says Bernier.

For unionized employers, they could revise their collective agreement so that a medical note is required as of the fourth day of absence, using a side letter of memorandum of understanding, she says.

“Or they could reopen the collective agreement if there's more elements that they would want to change… but then there's always risks in opening up a collective agreement.”

For unionized employers, adjustments to collective agreements will be needed, says Legault.

“Just because you have a collective agreement that provided for a different type of rule, it doesn't apply anymore.”

Communicating changes to managers

Training managers to navigate the new rules is essential to avoid potential missteps. Legault highlights the importance of consistent communication — especially when requesting medical notes has been a regular practice for decades.

“It’s going to take some adjusting and it’s going to take some [getting] used to.”

Employers will want to take a cohesive approach to the new rules, especially with the lack of government guidelines, she says.

“[It’s about] making sure that when a question arises, there’s communication within the workplace so we don’t apply different rules, we don’t apply different interpretations.”

However, Bernier warns that untrained managers could inadvertently create legal risks.

“Having managers speak to employees about sick leaves can be tricky, because sometimes they are not informed or trained to ask proper questions or know what not to ask in those circumstances,” she says.

“Depending on the case, it could also just be [about] telling managers that in case of sick leave, refer them to HR automatically and to not get into the details to [avoid] a misstep.”

Counteracting abuse of sick leaves

The legislation may heighten employer concerns about absenteeism and potential abuse by employees. However, the type of employee involved can also make a difference when it comes to justifying a request for documentation.

“If we have an employee [whose] motives seem a bit sketchy, or we know it's an employee who has a history of always being absent, is not being very present at work, then that would justify asking for a document,” says Legault.

“[If it’s] an exemplary employee, so they never asked for any leave of absence, would you still be justified to asking for medical note? We could argue that it would be, but you still have this parameter.”

Tracking patterns of absence can help employers identify potential misuse of the new rules. Bernier offers examples of circumstances that might justify further inquiry: “If the first three absences of the year were always on a Monday, always on a Friday, always the day before a statutory holiday, that could be… a circumstance that would justify it.”

There's also a possibility for a full investigation. If, for example, you learn through the grapevine or other employees that they saw a colleague active when they are supposed to be sick in bed, that could warrant a conversation, she says: “Maybe it is more of an investigation, depending on the context.”

Encouraging accountability without documents

Although Bill 68 prohibits documentation requests for short-term absences, employers can still promote accountability through alternative measures.

Quebec’s new law states employers cannot ask for documents — but they can always ask for more information, says Legault.

“You can ask the employee to give updates… you don’t have to wait three days without any news, knowing absolutely nothing,” she says. “[Employees] do have to give information, and they do have to be responsive to questions.”

Another option is to add a “psychological layer” by asking employees to sign a declaration declaring that they were off for medical reasons on that day, says Bernier.

“The declaration could contain, for example, a warning that says the employee acknowledges that if they lied about this, it would be grounds for discipline, up to and including termination.”

That kind of discipline will depend a lot on context, taking into account such factors as a person’s position in the company and years of service, for example, she says.

“There’s also the fact that it will vary in a unionized and non-unionized context…. The collective agreement will come in and frame the rules.”

Employers can also appeal to employees’ sense of responsibility toward their colleagues. Bernier suggests: “If the employer… explains the impact [of absences] on the rest of the team, that can help.”

And, of course, there’s the option of surveillance to check if someone’s absence is legitimate, she says, “if the circumstances warrant it and if you’ve spoken with your legal advisor… there are very strict criteria for when surveillance is acceptance.”

Previously, the Canadian Medical Association (CMA) urged an end to the requirement for sick notes for short-term minor illnesses, arguing that the practice places unnecessary burdens on physicians and strains an already overstretched healthcare system.

Incentives and retention strategies

Employers may also consider offering incentives to encourage attendance and mitigate potential abuse of leave policies.

Bonuses or attendance-based benefits can be effective tools, especially when an increase in non-attendance is expected, says Bernier.

“There is obviously a cost for that but in non-unionized contexts, that could be something that could be explored; in non-unionized contexts, though, the employer would have to discuss this with the union.”

Flexible vacation policies can also reduce absenteeism, she says, and some employers have a ‘take it or leave it’ vacation policy where unused days are paid out at the end of the year.

“That’s additional income that the employee didn’t count on, so maybe that’s an incentive for the employee not to actually take more days than what they truly need when they’re sick.”