Employers with sick leave or attendance policies that require a doctor's note to disclose the nature/reason for an absence should be wary of a recent California case (as well as a prior New York case relied on by the court in California). In EEOC v. Dillard's Inc. (S.D. Calif. 2012), the Court held that Dillard's attendance policy violated the federal Americans with Disabilities Act (ADA) because it required any health-related absence to be supported by a doctor's note stating "the nature of the absence (such as migraine, high blood pressure, etc...)." Dillard's later clarified this policy to mean that the doctor's note "must state the condition being treated." The Court held that the attendance policy was an impermissible disability-related inquiry because it required employees to disclose their underlying medical conditions. As the Court stated, "[this] invites intrusive questioning into the employee's medical condition, and tends to elicit information regarding an actual or perceived disability."
In rejecting the Dillard's attendance policy, the Court relied on an earlier decision from the US Court of Appeals for the Second Circuit in New York rejecting a similar policy. In Conroy v. New York Department of Correctional Services (2d Cir. 2003), the Second Circuit held that an employer's policy violated the ADA because it required employees returning to work after an absence of four days or more to provide a medical certification with a "brief general diagnosis." The Second Circuit held that "even what [the employer] refers to as a 'general diagnosis' may tend to reveal a disability" or "may give rise to the perception of a disability." But see Lee v. City of Columbus (6th Cir. 2011) (rejecting claim that requiring doctor's note to state "nature of the illness" and capability to return to regular duty violated federal Rehabilitation Act, which is similar to the ADA but applies to federal employees, among others).
Disability-related inquiries are permissible under the ADA if they are job-related and consistent with business necessity—the Court in Dillard's, however, rejected Dillard's claim that the policy was necessary to verify the legitimacy of the medical absences and ensure that employees can return to work without posing a threat to others. The Court found that Dillard's had failed to show that it needed this information "because of excessive absences or in order to protect the health and safety of its other employees." As the Court stated, "[w]here a medical provider verifies in writing that the employee has a medical condition, which required her to be out of work, and also specifies when the employee may return to work, Dillard's has not explained why it is necessary to identify the underlying medical condition."
Employers should review their attendance/sick leave policies for compliance with the ADA. As the Dillard's Court noted, "Dillard's could have required its employees to submit a doctor's note specifying the date on which the employee was seen, stating that the absence from work was medically necessary, and stating the date on which such employee would be able to return to work." For employers looking for a sensible sick leave policy, the Court's suggestion is a good one provided that it applies to all employees and not just those with disabilities. Such a policy does not prevent an employer from requesting additional information from an employee if, for example, the employer has reasonable suspicion that the employee cannot perform the essential functions of his or her job, will pose a direct threat or is abusing the sick leave, or if the employee requests a reasonable accommodation or leave pursuant to the federal Family and Medical Leave Act or similar laws.
N.B.: The federal Equal Employment Opportunity Commission has previously stated, in connection with a flu pandemic, that employers can ask employees who report feeling ill or who call in sick if they have flu-like symptoms (fever or chills AND cough or sore throat)—such inquiries are not disability-related inquiries if the flu pandemic is like the seasonal flu. If pandemic flu becomes more severe, such inquiries even if disability-related inquiries are justified by business necessity (i.e., objective evidence that the severe form of pandemic flu poses a direct threat). In either case, all information about employee illness must be treated as a confidential medical record.
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