Can you ask for medical info when employees use sick days?
November 11, 2008 by Sam NarisiPosted in: Americans with Disabilities Act, Benefits Law, In this week's e-newsletter, Latest News & Views
When employees take sick days, how much information can the company get to make sure the time off is being used the right way?
According to the Equal Employment Opportunity Commission, not much.
The EEOC recently sued retail chain Dillard’s over the company’s sick leave policy.
Under the policy, employees had to hand in a doctor’s note stating the specific nature of an illness in order to take authorized sick leave.
An employee complained that the policy invaded her privacy and was fired after she took sick days without turning in the note. She filed a claim with the EEOC, which is now suing the company.
The agency claims that asking for specific medical information before approving absences violates employees’ rights under the Americans with Disabilities Act.
The case is still pending. We’ll keep you posted on how it turns out.
Cite: EEOC v. Dillard’s
Tags: ADA, doctor's note, sick days
November 12th, 2008 at 10:34 am
I would like to know the outcome of this. Thank you.
November 12th, 2008 at 10:45 am
Asking for a note that shows you visited a doctor, without the specific reasons is sufficient enough here at our company. It does seem invasive to ask for specifics if the employee doesn’t want to discuss them.
November 12th, 2008 at 11:56 am
Requesting the specifics of the illness is very tricky; because this is most definately an invasion of privacy. If the doctor has covered the time off it is not for us to question. We must just continue to request the proper documentation of doctor approved time off and follow our attendance policy. Even when dealing with FMLA we must only gently prod for generalized information. Each person is different and some want to keep their information very private. For those who wish privacy I just have to let them know what options are available if proper paperwork is turned in.
November 12th, 2008 at 2:28 pm
Our company requries a medical excuse after 3 days. Most Urgicares/MedExpress or Doctors offices only state the day seen in the office and the day they can return to work.
November 12th, 2008 at 2:36 pm
As for sick days… what about the common cold… or the flu… or food poisoning (which btw is commonly misdiagnosed by the patient as the flu)… i.e. non-Doctor illnesses that will be a 24 hour passing bug? A Dr.’s intervention is not needed and therefore wasteful on the part of the patient who should after all, just be at home in bed. If you restrain the employees to a necessary Doctors notice, then you are certainly planting seeds of mistrust. If the employee misses more than 2 days due to what they describe as illness, then perhaps a trip to the Doctor is in order and a note stating that an office visit was pursued should be a condition of returning to work. Communicable diseases need to be handled with care. No one likes the office worker who coughs all over them makes them sick and causes them to lose work as a result. Tricky call however you play it.
November 12th, 2008 at 8:00 pm
Like Diane’s company, we only require a doctor’s note if a staff member is out for 3 or more days. We do not require any details on the illness, simply a doctor’s not stating when the time frame they should be out and when they can return to work, hopefully to ensure they are well enough not to infect other people in the office.
November 12th, 2008 at 9:44 pm
Response to KKJ: True, there are some illnesses which do not require a doctor visit…however that is why I think most companies have a multiple-day “grace period” of unexcused absences before disciplinary action comes into play (im my company, it’s 3). I find that 3 unexcused absences usually covers those “grey-area” times.
November 13th, 2008 at 10:08 am
I use the phrase, ” a doctor’s note may be required for absences longer than three days.” I don’t need to ask everyone for an excuse (especially the good employees) unless I suspect something is fishy.
November 13th, 2008 at 12:20 pm
Response to Larry
Our handbook states the same as yours, however as a practice we use it as a standard practice. The phrase “may be required” is written for the time that there may be an inadvertant deviation from this standard of practice.
To characterize employees as good or bad can be very problematic. It is hard to tell if the characterization is based on job performance or is being influenced by personal bias. Many nonsmokers think smokers are “bad” employees. Many healthy, young employees think that older employees with health issues are “bad employees.” Some women think that men are not flexible and are “bad” employees. Some US workers think that foreign, immigrant workers may be “bad” employees. And some Christian workers think that “muslim” workers are bad employees because they are different and take different holidays.
Of course, bad employees need to be watched and what they do and tell you is often “fishy.” Is it any wonder that they get caught being “bad” more often. And so the perception continues with a “factual” basis.
November 13th, 2008 at 2:57 pm
I would also like to hear the outcome. Intermittent leaves under the FMLA can be very frustrating to employers who are trying to keep absences under control; not to mention the recordkeeping requirements and the cautious nature of approaching these individuals with proof of absences. It also creates anger with fellow workers who are at work every day picking up the workload for the “fishy” employees. We have been advised that you cannot even contact the doctor’s office for confirmation of absences. Most individuals are able to produce documentation of illnesses and treatment dates without disclosing the nature of the illness but the “fishy” employees expect employers to rely upon their word that they are ligitimately sick. Our salary continuation policy and no sick day policy provide most of our employees the opportunity to take off work while sick without concern of receiving a penalty or deduction in pay. We may need to reissue a new policy soon.
November 14th, 2008 at 3:34 pm
We require documentation of the reason for an unexcused absence. If the employee’s car broke down, we would ask for copies of receipts of the repair. If they had a flat, we would ask for copies of the flat repair receipts. This is only for unexcused absences. If they scheduled time off to take care of a car repair or to have a repair person come to their house, documentation isn’t required. We’re trying to encourage scheduled absences and want employees to only be absent on an unscheduled basis if it’s a true emergency.
If they were sick, we don’t require any documentation until they have been sick for 3 or more days. At that point, we either require a doctor’s note stating they have been under their care (no specific medical information required) or copies of a prescription that was called in (in case they didn’t actually go in to see the doctor) or receipts for any cold / sinus type medication that was purchased to help them with their symptoms. We try to be fairly lenient about this…sometimes you can tell without a doubt that a person is sick and that’s what their sick leave is for. We don’t want them coming to work and spreading it around!
The goal is to minimize unscheduled absences. If an unscheduled absence is needed in an emergency or because of illness, we want our employee’s to be able to focus on getting the situation taken care of or on getting better without creating more stress for them. But we expect them to schedule their time off whenever possible. It works pretty well.
As far as asking for specific medical information…don’t want it; don’t need it. That’s not the point. It wouldn’t come into play unless it was an FMLA or disability situation, which is totally different than what you wrote about here. But it should be noted that an absence of 3 or more days when a person is under the care of a physician could trigger FMLA.
November 18th, 2008 at 5:34 pm
I would like to know the outcome of this report
November 19th, 2008 at 12:54 pm
We also use a “may require” statement and a 3-day period. Since ADA, FMLA, and work comp can all interact with paid and unpaid time off, this gives us leeway depending on the situation. As a matter of practice, we would require that someone who had been physically injured or had a communicable disease and was being treated by a medical professional provide a release from the doctor before returning to work. If someone’s out with a cold or flu and isn’t treating through a doctor, we don’t require anything on paper (other than a written request for the time off) since our main concern is whether it falls under FMLA, ADA, or work comp. I’m sure we’ve had employees abuse this, but we handle that through our discipline and performance policies.
November 26th, 2008 at 11:59 am
I would like to know the outcome of this report.