Quebec introduces legislation limiting employer rights to request medical notes in support of absences

Bill 68, An Act mainly to reduce the administrative burden of physicians (“Bill 68”), was passed on October 9, 2024 by the National Assembly. The stated purpose of Bill 68 is to improve access to medical services. However, Bill 68 has also resulted in amendments to Quebec’s employment standards legislation, the Act Respecting Labour Standards (the “ARLS”), which prevent employers from requiring documents, including medical certificates, attesting to the reasons for short-term employee absences, including those related to illness or family caregiving. These amendments will come into force on January 1, 2025.

Previously, employers could require an employee to provide a medical certificate attesting to the reasons for their absence due to illness, organ or tissue donation for transplant, accidents, domestic violence, sexual violence, or criminal offenses, if warranted having regard to the duration of the absence or its repetitive nature. However, when Bill 68 comes into force, employers will be prohibited from requesting such documentation in respect of an employee’s first three short-term absences within a 12-month period. Short-term absences refer to absences not exceeding three consecutive days. The number of absences are to be calculated based on the occurrence of the first absence, which triggers the 12-month period, rather than the calendar year. This prohibition also applies to employers in the construction industry whose employees are entitled to similar types of leave under the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry.

As a result, employers will not be able to request any medical documentation to justify an employee’s first three short-term absences taken during a 12-month period. This prohibition should, however, not be interpreted as a free pass for employees to abuse the right to be absent from work. If absences are questionable or clearly unjustified, an employer may have other recourse to address these issues, including the imposition of disciplinary sanctions if warranted in the circumstances.

Family or parental leave and absences

The ARLS currently stipulates that an employee may be absent from work for up to ten days per year to fulfill obligations related to the care, health, or education of the employee’s child, the child of the employee’s spouse, or as a result of the state of health of a relative or a person for whom the employee acts as a caregiver. If warranted by the duration of the absence, the employer may request that the employee provide a document attesting to the reason for the absence.

However, following the adoption of Bill 68, employers will be prohibited from asking employees for a medical certificate justifying such an absence. This prohibition does not prevent employers from requesting other types of documentation to justify the absence (relating to daycare services, residential and long-term care centre services or educational institutions, for example), but the prohibition explicitly excludes medical certificates.

Impacts for employers

Failure to comply with Bill 68 could result in penalties under the ARLS and may form the basis of a prohibited practice complaint.

As a result of these changes, employers should review and revisit their policies on requiring medical certificates to justify employee absences. While these policy reviews should be taken with a view to ensuring compliance with the restrictions set out in Bill 68, employers should also consider bolstering language in their policies regarding unjustified absences and the disciplinary action that will be taken in the event of same in order to mitigate the potential impact of employees abusing the prohibitions in Bill 68.

For more information or inquiries pertaining to the obligations of Quebec businesses and employers, please contact one of our DLA Piper (Canada) LLP Quebec employment and labour lawyers.