Doctor’s Note: Can An Employer Ask for One?

Generally, an employer can ask employees for a doctor’s note when they take time off because of an illness. But it’s important to consider the laws governing doctors’ notes before making them a requirement.

The Health Insurance Portability and Accountability Act Privacy Rule

Under HIPAA’s Privacy Rule, an employer can ask employees for a doctor’s note and other health information if the information is needed for “sick leave, workers’ compensation, wellness programs or health insurance.”

However, if the employer directly asks the healthcare provider for information about the employee, the provider cannot supply that information to the employer without the employee’s consent — unless another statute compels the provider to do so.

The Americans with Disabilities Act

According to the Equal Employment Opportunity Commission — which enforces the ADA — employers can have a policy requiring that all employees provide a doctor’s note for the purpose of substantiating a disability, requesting reasonable accommodation or proving the need for leave.

Note that in 2017 a federal court upheld an ADA-related case where the employee was terminated for refusing to provide a doctor’s note. Here’s a snapshot of the case, Gogos v. AMS Mechanical System Inc.: The employee (Gogos) sued his employer, AMS Mechanical System Inc., arguing that he was fired because of a disability — which, if true, would be a violation of the ADA.

According to legal website Lexology, the 7th Circuit Court of Appeals affirmed “that there was ‘uncontradicted’ evidence that the employee was terminated for his insubordination in refusing what the court perceived to be a reasonable and lawful request for a doctor’s note.”

The Family and Medical Leave Act

The FMLA permits employers to request a doctor’s note or medical certification when an employee first requests leave under the FMLA. If the employee is on extended leave, a doctor’s note can typically be requested only every 30 days.

For an employee on intermittent FMLA leave, a doctor’s note can not be required every time he or she misses work. The initial doctor’s note that the employee submitted, indicating the need for intermittent FMLA leave, should be enough. Employers can, however, ask whether the absence is directly related to the reason for intermittent FMLA leave.

Sick Leave Policy

Employers can generally make doctors’ notes part of their sick leave policy, as long as the practice is consistently applied to all employees. To avoid running afoul of the ADA, you might want to limit requests for doctors’ notes to verifying that the employee was seen by a healthcare provider and confirming any work-related restrictions. Do not seek a diagnosis of the employee’s illness, unless permitted by law.

Also important is checking state and local paid sick leave laws, which may forbid an employer from requesting a doctor’s note unless the employee has been absent for a certain number of days.

This is just a general overview of what is obviously a complex topic. Be sure to seek appropriate counsel if you’d like to institute a policy on doctors’ notes. And consider whether it’s always necessary to ask for a doctor’s note when an employee is out only briefly with a cold or similar illness that does not require a doctor’s care.

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Copyright 2019