Approximately 58 percent of employees between the ages of 18 and 30 took up to five sick days in the previous year, according to a recent Statista survey.  With the COVID-19 pandemic affecting workers in the United States, this number has significantly risen in recent months. The Families First Coronavirus Response Act (FFRCA) requires employers to provide workers with medical leave for specific reasons in relation to the COVID-19 pandemic. However, some employers require a doctor’s note before an absent employee can return to work.

In most cases, employers can only require a doctor’s note when it is job-related or a matter of business necessity.  These considerations balance both the legal and privacy aspects of such a request before determining whether it is justified. Employers may be permitted to require a doctor’s note to return to work based on the circumstances that prompt the request, the employer’s established work policies, and applicable laws.

Sick Leave Policy

In the U.S., there are no federal legal requirements for employers that offer paid sick leave. Businesses subject to the Family and Medical Leave Act (FMLA) — which generally includes employers with at least 50 employees within a 75 mile radius — are required to provide unpaid leave for up to 12 weeks for qualifying events, including a serious medical condition. Employees may be eligible for FMLA leave if they have worked for their employer for a minimum of 12 months, and worked 1,250 hours over the previous 12 months.

Company sick leave policies will generally detail whether or not sick leave is paid or unpaid and under what conditions. The policy may also include a method for tracking employee’s accrual of sick days, a procedure for employees to request scheduled sick days (e.g., hospital stays or surgeries), and a process to audit the use of sick days to deter abuse. A sick leave policy will also provide a description of an employer’s right to request medical documentation that supports a requested sick day.

HIPAA Privacy Rules

Passed by Congress in 1996, the Health Insurance Portability and Accountability Act (HIPAA) sets widely-known standards for health care data. HIPAA aims to provide patients with data privacy and certain security provisions to keep medical information safe. The Privacy Rules standards include “covered entities” that prevent certain private health information from being shared without permission from the patient.

Under HIPAA’s privacy rule, an employer has the right to request a doctor’s note from an employee if the information is needed for sick leave, workers’ compensation, health insurance, or wellness programs. However, a healthcare provider cannot supply private health information to an employer without the employee’s consent. The exception is a separate law that allows the release of health information without direct authorization.

ADA Rules

The Americans with Disability Act (ADA) prohibits discrimination against people with disabilities in all aspects of life, including schools, jobs, transportation, and all private and public establishments. This civil rights law was put in place to help ensure that all people with disabilities have the same opportunities and rights as everyone else. Title I of the ADA requires employers with 15 or more employees to provide disabled employees with reasonable accommodations.

According to the Equal Employment Opportunity Commission, the federal agency that enforces the ADA, employers have the right to create a policy that requires all employees to provide a doctor’s note as evidence of a disability that has resulted in a need for leave. Employee health information may also be used by an employer determine whether the employee can perform the essential functions of the job, with or without an accommodation.

However, employers cannot require employees to reveal medical information unless there is a direct connection to the job or the employee’s request for an accommodation.  For example, if a job required an employee to stand for long periods of time, and an otherwise qualified employee needed to take additional breaks to sit down, the employer could request a doctor’s note justifying the requested accommodation.

FMLA Rules

The Family Medical Leave Act enables employees to take work-protected condition unpaid leave for themselves or to care for an immediate family member suffering from a serious health problem, to adopt a child, or to care for a newborn. At the end of their FMLA leave, employees are entitled to return to their same job position or an equivalent position. The FMLA applies to all public agencies, as well as private sector employers with 50 employees within a 75-mile radius.

If an employee needs time off under the FMLA, an employer may request a certification completed by a healthcare provider to approve the leave request. However, an employer cannot legally request any health information outside of what FMLA requires. Examples of permitted documents include the family member’s medical history, diagnosed medical condition, when and how the illness started, the level of care needed, and an explanation of why the worker is unable to complete his or her job duties.

Seek Legal Expertise

Most employers will only ask for medical information or a doctor’s note when absolutely necessary. However, some employees may feel uneasy about sharing personal health information, especially when an employer does not provide a justified reason for needing private health data. If you believe that you are being discriminated against due to an illness or disability, or if you are being punished for taking sick leave, speak with a reputable employment law attorney at JacksonWhite Law.

 

Call our Employment Law team at (480) 464-1111 to discuss your case today.

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