Are Your Inquiries into Justification for Sick Leave Legal?

Written by Robert G. Brody and Rebecca Goldberg on January 14, 2013

If you’ve seen Ferris Bueller’s Day Off you know that just because someone calls in sick does not mean he or she actually is ill.  Employers often demand documentation to justify absences due to sickness, but asking for too much information can be unlawful under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (“FMLA”), and some state laws.  The Equal Employment Opportunity Commission (“EEOC”) just settled a class action disability discrimination lawsuit based on this issue against Dillard’s, Inc., a national chain of department stores, for $2 million.  Here are some suggestions on how you can avoid the same fate.

Under the ADA, employers are prohibited from inquiring about employees’ medical conditions unless doing so is “job related and consistent with business necessity.”  Under this standard, an employer may ask for a doctor’s note to support the use of sick leave, but it generally may not ask for specific information about the employee’s medical condition.  The employer may ask for more specific information under special circumstances, such as when it is necessary to determine whether the employee is still capable of performing his or her job.  Employers may also request enough information to determine whether an employee is entitled to leave under the FMLA, which permits employees to take leave for a “serious health condition.”  Employers should seek out no more information than necessary to meet the business necessity standard.  When in doubt, it is wise to consult an attorney.

Employers should also consider whether state disability law or leave law limits medical inquiries.  For example, employers governed by the Connecticut Paid Sick Leave Law are prohibited from asking for a doctor’s note unless the employee seeks paid sick leave of three or more consecutive days.

The EEOC’s case against Dillard’s also concerned its use of a policy that placed a cap on the amount of health-related leave an employee could take.  Employers covered by the ADA cannot have an unbending blanket limitation on the use of sick leave, as this constitutes disability discrimination.  However, employers can offer limited amounts of sick leave, provided they allow additional time if necessary to satisfy a reasonable accommodation.  For example, if an employee with a disability exhausts her sick leave but requests just a few more days to recover from surgery, a covered employer must accommodate the request unless doing so would create an undue hardship.  The “undue hardship” standard can be difficult to meet for a modest extension of leave so employers should proceed with caution in denying such requests and be sure to have qualified counsel help evaluate your obligation.

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More