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Nova Scotia to limit medical notes for employee absences

This article was updated on April 19, 2023.

By Mark Tector and Ben Currie

On April 12, 2023 Bill 256: Patient Access to Care Act received Royal Assent. Schedule B of the Bill is the Medical Certificates for Employee Absence Act (“Act”), which will take effect on July 1, 2023. The Act prevents a provincially regulated employer in Nova Scotia from requesting a certificate (i.e. medical note) from an employee related to the employee’s absence from work due to sickness or injury unless one of the following conditions are met:

  1. The absence continues for more than five consecutive working days; or
  2. The employee has had at least two non-consecutive absences of five or fewer working days due to sickness or injury in the prior 12-months.

Despite the name of the Act, the certificate can come from a “qualified health professional” who is providing a diagnosis, treatment or care to the employee with respect to the illness or injury causing the employee’s absence. This includes not only physicians, but any person who holds a license to practice a regulated health profession in Nova Scotia. The qualified health professional must be acting within their scope of practice when issuing the certificate.

Nova Scotia joins the remaining Atlantic provinces, which, through employment standards legislation, restrict the ability of provincially regulated employers from requesting a certificate as follows:

  • New Brunswick: If the employee’s absence is four or more consecutive days, the employer can request a certificate from a physician, nurse practitioner, or midwife.
  • Prince Edward Island: If the employee’s absence is three or more consecutive days, the employer can request a certificate from a physician.
  • Newfoundland and Labrador: If the employee’s absence is three or more consecutive days, the employee shall provide a certificate from a physician or nurse practitioner. This puts the obligation on the employee; however, practically employers may choose to waive the requirement depending on the circumstances.

Nova Scotia’s proposed Act differs from the legislation in the remaining Atlantic provinces in two important ways:

  1. It allows for a second condition whereby the employer may request a certificate for two non-consecutive absences of five or fewer working days within the prior 12-months; and
  2. It allows any regulated health professional in Nova Scotia to issue the certificate, provided they are operating within their scope of practice and treating the employee. This is much broader than the other Atlantic provinces which require the certificate to come from a physician, and in some Atlantic provinces a nurse practitioner or midwife.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment group.

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