Here are essential facts you need to know before requesting a doctor's note from your employee
Employers may request employees to submit a doctor’s note to verify the reason for their absence or provide accommodations for their condition. However, there are laws in place to protect employee’s privacy when it comes to their health and medical situation.
In some cases, asking for a doctor’s note may be interpreted as micromanagement, or worse a form of bullying, and discrimination by the employee. When done wrong, this can potentially undermine your efforts in fostering a culture of trust and mutual respect.
As such, HR leaders must be aware of laws regarding workers’ health information and sick leaves. Here are things that you should know before requesting a doctor’s note from your employee.
- Is it legal to request a doctor’s note from an employee?
- What information should be included in a doctor’s note?
- When should I ask for a doctor’s note?
- What is the proper way of asking for health information from an employee?
- Can I fire someone for calling in sick and not submitting a doctor’s note?
- When is asking for a doctor’s note unnecessary?
- Who is eligible for an FMLA leave?
Read more: 3 simple ideas for streamlining your FMLA procedures
1. Is it legal to request a doctor’s note from an employee?
The simple answer is yes – employers in the United States have the right to request a return-to-work or doctor’s note to verify that their workers are ill or why they can’t report for a prolonged period of time.
Companies may also require this document in order to provide accommodations in the workplace for employees with physical limitations, chronic health conditions, or disabilities.
However, your sick note policy should not infringe on anyone’s right to medical privacy and protection from discrimination.
The Americans with Disabilities Act (ADA) prohibits employers from “making inquiries into the disabilities of their employees unless it is job-related and necessary for the conduct of business,” says the Equal Employment Opportunity Commission (EEOC).
The EEOC also states that workers are not required to submit medical records of their illnesses to their employers. You also can’t terminate someone in retaliation if they refuse to disclose specific details about their health.
A good example is the disability discrimination lawsuit filed by the EEOC in 2008 against the retail chain Dillard’s Inc. The company had a longstanding policy that required all its workers to disclose confidential and personal medical information to have their sick leaves approved.
Moreover, Dillard’s fired several workers in retaliation because they refused to provide details of their medical conditions. The company ended up paying $2 million to settle the class action lawsuit in a three-year consent decree.
2. What information should be included in a doctor’s note?
You cannot demand detailed information to be included in a return-to-work note, says the US Department of Labor (DOL). The employee reserves the right to keep their medical diagnosis, type of treatment, and the severity of their illnesses confidential.
A doctor’s note should validate the worker’s sick leave days at the minimum. It should include the date of appointment with the doctor and dates the employee was ill, injured, or unfit for work.
More importantly, the note must indicate whether the doctor or healthcare provider recommends a longer period of absence for the employee to recover. It should also mention physical limitations that may affect the employee’s performance and safety in the workplace.
For instance, an orthopedic physician must put it into writing if an employee with a back injury cannot carry heavy objects for at least two weeks and they need to rest for a whole month to fully recover.
Lastly, you should keep an eye on contestable details on the doctor’s note that may suggest the document is fake. A pre-signed note, low-quality print and paper, or a physician’s office in another state are possible signs of forgery.
This can be a tricky situation because forgery is a crime punishable by termination from work and incarceration under federal law.
Also remember that, should you decide to call the doctor to verify the note, you first need to talk to the employee in question to get a signed release. Otherwise, you will be in violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Read more: California’s paid sick-leave law is almost here
3. When should I ask an employee to submit a doctor’s note?
Employers typically ask for a return-to-work note if the employees have been absent for three or more consecutive days, but no federal law requires companies to do this. It primarily depends on the organization’s culture and internal policies.
In fact, you can require your workers to submit one even for half-day sick leaves. What matters is that you set the expectations of everyone in your organization beforehand to follow this protocol.
As such, your company’s handbook or onboarding materials must clearly state your rules on filing and approving sick leaves.
You can also request for a doctor’s note when you think a sick leave’s validity may be questionable or suspicious. For instance, a worker may call in sick on the same date on which a vacation leave was denied.
Lastly, you should follow the provisions under the Family and Medical Leave Act of 1993 (FMLA) that govern cases of serious health issues and intermittent leaves due to medical conditions.
An employer may ask for a medical certification for employees requesting for an FMLA leave but “not more often than every 30 days and only in connection with an absence by the employee,” according to FMLA regulation 825.308.
Moreover, you cannot request medical recertification from the employee sooner than the minimum period indicated in the original certificate.
Let’s say a worker is currently on an FMLA sick leave. You can’t require them to submit a new medical note on their 31st day of absence if the doctor initially endorsed a leave period of 40 days.
The most important thing is to follow employment laws while implementing your policies consistently. Don’t ask a particular employee to submit a note for all their sick days if you don’t do the same for everyone.
Otherwise, this can be used as evidence against you in a bullying or discrimination complaint under the Civil Rights Act of 1964.
4. What is the proper way of asking for health information from an employee?
Remember that employees may ask their physicians to withhold some information from the note due to doctor-patient confidentiality.
This is where the leaders’ communication skills become a more important factor. Managers should ask the returning employee if they feel fit to work and whether they need some accommodations due to their health condition.
Speak in a calm and professional tone. Reassure the employee that they don’t need to disclose more information than they are comfortable with, but encourage them to provide enough details so you can make special arrangements from them.
Ask whether the employee has physical limitations and safety risks arising resulted from their condition, just in case these are not written on the physician’s note.
Lastly, you can ask the employee to answer an ADA inquiry form or an FMLA questionnaire from the DOL to determine if they have special needs.
Reasonable accommodations may include changing their shift to a later time, allowing them to take more frequent breaks, or letting them work remotely. Use your best judgment to support the employee without disrupting your company’s operations or spending beyond what’s equitable.
5. Can you fire someone for calling in sick and not submitting a doctor’s note?
The short answer is yes. Most employment in the United States is at-will, meaning either the employer or employee can legally terminate the relationship at any time for no specific reason.
Both healthy and sick workers are covered by the at-will rule unless you have a contract or implied agreement that stipulates the length of employment or terms regarding termination. Thus, technically, you can fire someone who called in sick with or without a doctor’s note.
However, the worker can file a wrongful termination complaint to the DOL, especially if they believe that they were fired due to discrimination or other unlawful reasons.
If this happens, the burden of proof will shift toward the employer. You now have to supply evidence that you terminated them due to just cause or poor performance, even after you considered their medical condition and provided reasonable accommodations.
The worker’s illness, injury, or disability by itself is not a sufficient reason for firing them, according to the ADA. Similar to the Dillard’s lawsuit, the EEOC also protects them from wrongful termination due to retaliation.
The bottom line is that you should always keep a paper trail regarding your subordinates’ performance. This will help you establish reasonable causes for terminating them should the need arises.
Read more: These are the most common questions about employee termination, answered
6. When is asking for a doctor’s note unnecessary?
In most organizations, a return-to-work note is required primarily for administrative purposes. However, there are situations when an employee’s illness or injury is obvious, and asking for the document may seem unnecessary – or even insensitive.
For example, a machine operator who hurt his hands at work can’t perform effectively and safely for a while. Similarly, a phone sales representative who recently underwent throat surgery can’t perform their role effectively.
A doctor’s note for such cases simply validates what the employer already knows. If your company policy is not strict about this documentation for sick leaves, then there’s no need to ask for it.
However, the workers must provide a note if they will be away for longer than their remaining sick days. As previously mentioned, workers need to provide medical certification if they are requesting for an FMLA leave.
Read this article to learn the different ways on how to get paid while on FMLA leave.
Regarding the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) has provided several guidelines for organizations on requesting doctor’s notes from people who missed work due to experiencing COVID-19 symptoms.
“Employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work,” says CDC. “Healthcare providers and medical facilities may be extremely busy and not able to provide such document in a timely manner.”
CDC also encourages companies to appoint a COVID-19 workplace coordinator for ensuring that their internal sick leave policies are flexible, non-punitive, and consistent with public health guidance.
7. Who is eligible for an FMLA leave?
FMLA is a law that requires covered employers to provide unpaid and job-protected leave of up to 12 weeks for workers with qualified medical and family reasons.
If your company employs 50 or more workers for each 20 or more calendar workweeks, you are covered by the FMLA. You should inform your employees about FMLA’s provisions during onboarding and by posting a general notice for filing a claim under the Act in a conspicuous spot in the workplace.
In most cases, FMLA leaves are granted to people with serious health problems who require prolonged hospitalization or recovery time.
To be eligible, an employee must have worked for the employer for at least one year and rendered 1,250 work hours within 12 months before the start of the FMLA sick leave.
On the subject of doctor’s notes, ADA and HIPAA regulations still apply to protect the employee’s medical privacy. In fact, FMLA provisions never mentioned that workers need to submit a physician’s note for filing a claim.
What they need to submit is an FMLA certification form duly accomplished by the employee and healthcare provider. This is known as form WH-380E and it can be downloaded from the DOL website.
Meanwhile, the employee should fill out form WH-380F if the patient is a family member of the said employee and not the employee themselves.
Read more: How does FMLA work in Texas?
