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Medical Absence Policies – Don’t Ask Why!

You may need to change your medical note requirement.

In recent decision with broad-reaching implications, a federal court ruled that an employer may not require an employee to disclose the medical reason for a health-related absence.  Such a requirement, according to the court, violates the Americans with Disabilities Act’s (ADA) prohibition on “disability-related inquiries” unless the employer can show that the inquiry is “job-related and consistent with business necessity.”  U.S. EEOC v. Dillard’s Inc. (S.D.Ca. 2012)

Employer alert:  Does your company’s attendance policy require employees to support medical absences or paid sick leave with a doctor’s note?  If so, revisit that policy today to ensure you won’t be following Dillard’s as the subject of EEOC scrutiny.

In 2006, Dillard’s policy was that an employee’s health-related absence would not be excused unless the employee submitted a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc.).”  According to Dillard’s, the policy required that the doctor’s note “must state the condition being treated.”

In the lawsuit, the EEOC presented examples of at least 3 employees who were initially denied absence approval because their doctors’ notes failed to state the medical condition that caused the employee’s absence.  These employees’ absences were approved only if they returned with a more complete note stating the medical condition.  The EEOC sued and claimed that requiring an employee to disclose the underlying medical condition to justify an absence constituted a disability-related inquiry in violation of the ADA.

What does the ADA say, specifically?

Pursuant to the ADA, an employer:

“shall not . . . make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  42 U.S.C. § 12112(d)(4)(A).

According to the EEOC, a “disability-related inquiry” is a question that is likely to elicit information about a disability.  The court agreed that requiring an employee to state the nature of the absence and the condition being treated might tend to reveal a disability, and thus was impermissible under the ADA.

Dillard’s defended its policy by claiming that the doctor’s note requirement was both job-related and consistent with business necessity.  To succeed in this defense, Dillard’s had to prove that its medical inquiry genuinely served the asserted business necessity, and that the request was no broader or more intrusive than necessary.  Dillard’s asserted two business reasons to justify its policy:  (1) the policy enabled Dillard’s to verify the legitimacy of the sick day before the absence would be excused; and (2) the policy ensured than an employee could safely return to work without posing a threat to the health or safety of others.

The court rejected these justifications, explaining that Dillard’s had submitted no evidence that the company needed to know the employee’s medical condition for either of these reasons.  The court also noted that Dillard’s had rescinded this policy prior to the court’s decision on summary judgment, observing:  “If the policy was indeed job-related and a matter of business necessity, Dillard’s has failed to explain how it is now able to operate as a business without such policy.”

What are the implications for FMLA and STD medical leaves?

FMLA.  Employers must be aware that employee illnesses lasting three or more days or requiring recurring treatments or appointments can be indicative of a “serious health condition” for which the employee may be entitled to leave under the Family and Medical Leave Act.  In these cases, can the employer inquire about the employee’s medical condition?  The answer is yes, at least to a point.  An employer can require the employee to provide a certification from a health care provider to determine whether the condition qualifies the employee for FMLA leave and job protection.  But, employers should proceed carefully under the FMLA, and not tread on the ADA by requesting more information than permitted by the FMLA.

STD.  The implications for STD leave are more complex and the answers are less clear.  Will the courts distinguish between permissible medical inquiries for STD benefits and the impermissible inquiries – according to the Dillard’s court – for paid sick leave benefits or receiving an excused absence?  If the employer cannot make inquiries into the nature of the employee’s medical condition when an employee uses a sick day, can the employer request verification of the employee’s medical condition to determine qualification for STD benefits?  If the distinction is the significance of the benefit (STD benefits typically last longer than sick leave), where will courts draw the line?

We will learn more when additional cases are decided, but it seems that employers should have broader latitude to determine that an employee’s health condition qualifies for benefits under the employer’s STD plan.  Certainly, the Employee Retirement and Income Security Act (ERISA) contemplates that employers can gather employee medical information for plans subject to the act.

Advice for Employers

Although the issue is clearly not resolved yet (see sidebar), employers should review company sick leave and absence policies to determine whether the company is at risk of EEOC scrutiny or employee lawsuits.  A blanket policy that requires employees to provide their medical condition or diagnosis for all medical-related absences will be suspect and hard to justify by business necessity.  Consider the following points for a safer employer policy that will, at the same time, adequately serve most business interests:

  1. Accept the employee’s statement that the sick day was for illness or injury unless there is a reasonable suspicion of fraud or misuse.
  2. If a doctor’s note is deemed necessary, consider whether it would be sufficient in most cases to require a simple statement that the employee was absent for medical reasons and is now safe to return to work.
  3. If the employer knows an absence relates to the employee’s medical condition and FMLA leave rights may be implicated, provide the employee with the required FMLA notices, and restrict medical inquiries to those permitted by the FMLA.
  4. Consider having a single paid time off entitlement (“PTO days”) that employees can use for any purpose – including illness, vacation, family needs, or simply a “mental health” day – subject to the employer’s time off request and notice policies.  In such case a doctor’s note is not necessary because the time off can be used for any reason as needed or desired by the employee.  But, of course, beware of automatic termination of the employee for exceeding PTO time without assessment of the employee’s possible need for an ADA accommodation.
Give us your input on this thorny issue.  Will the EEOC v. Dillard’s decision have an impact on medical inquires related to other types of employee absences, such as short term disability benefits?  We welcome your thoughts on this issue.  Please send comments to Reed Group’s Chief Compliance Officer Marti Cardi at mcardi@redgroup.com.

 


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