Doctors’ Notes for Work: An Overview
The general purpose of doctors’ notes for work is to both validate and document an employee’s claim to absences from work on account of medical conditions. Doctors generally are very thoughtful in writing their notes as they work hard to protect their patients’ privacy while at the same time providing the needed information to their employers to explain the absence. The type of information provided in the doctor’s note depends on the reason for an employee’s absence and the policies of the employer. Historically, doctors just provided a note indicating why an employee missed work and gave a return-to-work date. Now, however, doctors’ notes also lay out whether an employee has received treatment for their medical condition , any treatment suggestions on how to minimize complications, and whether the employee requires different duties or a modified work schedule due to their medical condition.
Employees are often confused about the purpose of doctors’ notes to their employment. Many employees think that it is only the employer’s right. While I understand this misconception, the fact is that it is the employee’s prerogative. Employees have the right to receive doctors’ notes for their employers. Many companies use this practice in making sure employees do not abuse leave policies. Arizona law, however, makes it very clear that an employer must give an employee leave even without a doctor’s note.
Federal Laws Related to Doctors’ Notes
There are a few key federal laws that control how doctors’ notes are distributed and shared in the workplace. The Americans with Disabilities Act (ADA) governs situations where an employee misses significant time at work due to a serious health condition, disability, or other covered condition. The ADA is a civil rights law that prohibits workplace discrimination on the basis of disability. The ADA requires an employer to provide reasonable accommodation to any qualified employee with a disability and who can perform the essential functions of their job without the need for additional accommodation. In general, a disability includes any physical or mental health impairments that severely limits a person’s ability to perform at least one vital life function, including seeing, hearing, and walking. Pregnancy, however, is not considered a disability under the ADA and is not protected by the federal disability discrimination law. An employer is not required under the ADA to excuse any misconduct that occurs if the employee is disabled, although employers are able to provide accommodations to employees with disabilities as long as it does not result in undue hardship to the business, i.e., does not create trouble for the employer in doing business.
The Family and Medical Leave Act (FMLA) is another federal law that applies to the need for doctors’ notes. The FMLA requires large employers to grant up to 12 weeks of unpaid time off for certain personal health or family needs. FMLA covered employers include public agencies (local, state, and federal) who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year; elementary and secondary schools that employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year; and covered private employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. To be eligible for FMLA leave, an employee must have worked for the employer for 12 full months with at least 1,250 hours in the twelve months prior to using FMLA leave to qualify for FMLA leave. Employees who are eligible for FMLA leave should remember that a medical certification may be requested when they seek to use professional health services for themselves or a family member covered by the FMLA. A medical certification is a written statement completed by the health care provider of the employee or family member and is used to certify that the employee has a serious health condition and needs FMLA leave. This document, which employees must return within 15 days after a request, must clearly state: The doctor’s note or medical certificate issued by the health care provider of the employee or family member seeking FMLA leave may be kept confidential and in a separate file apart from all other employee records. The FMLA does not limit employers from imposing further restrictions upon medical certificates provided by employees or their family members.
State Laws on Doctors’ Notes for Work
State laws often differ from federal laws when it comes to the specific types of evidence employees must provide to their employers, and differing requirements for doctors’ notes is no exception. For example, California law provides that in the absence of a contrary collective bargaining agreement, an employer may not deny an employee sick leave unless the employee has: used all available paid sick leave and personal leave or has no accrued sick leave, personal leave, or paid sick leave, and the employee obtains another form of paid time off. On the other hand, in Montana, employers are required to give each employee a copy of the sick leave policy, which must state the limitations that the employer places on the use of sick leave. It may also be helpful to reference the state where your company is located and where the employee is located.
Employees’ Rights and Responsibilities Regarding Doctors’ Notes
The obligation to provide notice of absence to the employer is distinct from the obligation to establish an employee’s right to job-protected leave under the FMLA or similar state laws. The employer may require a doctor’s note, but it cannot deny FMLA leave based on a failure to provide a doctor’s note. In the separate lawsuit, Doe v. DTE Energy Company, a 911 dispatch employee claimed her employer’s policies regarding note-taking and use of personal leave led to her wrongful termination. In that case, the employee claimed that her absence because of poor mental health led to her being wrongfully terminated when she had difficulty obtaining a doctor’s note for her leave.
Doctors’ notes are simply not the same as FMLA forms. The employer cannot deny leave for a failure to provide a doctor’s note, but most employers nevertheless adopt this policy and institute a disciplinary policy for employees who do not provide an employer-requested FMLA certification form within 15 days. In those cases, the employer will likely still be found in violation and to have terminated employees in violation of the FMLA.
Employers should adopt a policy stating the time by which the employee should submit leave documentation, clarify the standard required for medical documentation and what information should be provided, and attempt to accommodate the physicians’ limited response. Employers should remember that the FMLA does not specifically require any particular form of medical certification.
Employers’ Rights and Responsibilities when it Comes to Doctors’ Notes
Employers in both the private and public sectors have the right to require medical documentation from an employee who has called in sick and/or to ensure that the employee is fit to return to work following an absence due to illness or injury. However, a number of laws govern the information that employers may require and maintain, including personal medical information.
For example, under the American with Disabilities Act (ADA) and many other federal, state and local laws, employers must keep any medical information they receive confidential and separate from other records and generally must limit their access to that information on a need-to-know basis. The ADA’s confidentiality rules permit employers to disclosure medical information only in specific circumstances, such as when supervisors and managers need such information to be able to properly perform their jobs or when needed for a disability-related leave or other benefits. The ADA, like the many other laws discussed below, has given us the way to balance employee privacy and employer management, but goes further than many other laws in favoring employee privacy.
Many states also better protect employee medical information than the ADA does. Under many , an employer’s obligation to maintain confidential medical information may be greater than under the ADA.
In most cases, employers are allowed to ask about the nature and symptoms of an employee’s condition so that supervisors can try to understand the medical need for the leave and the anticipated duration. But with that question, the employer also has an obligation not to pry into the details of the diagnosis or treatment. There are exceptions to that general rule, such as when the employer administers an employee leave plan or short-term disability plan as part of its employee disability benefits. Under the federal Family and Medical Leave Act (FMLA), for example, an employer may insist on receiving certain information about the time needed for medical appointments or treatments. Under the Americans with Disabilities Act (ADA), there is no such discretion – the information requested from an employee must comply with the same strict standards. Many jurisdictions, state and local, have stricter rules than the federal laws discussed above so be sure to check those as well.
Penalties for Failing to Comply with Doctors’ Note Policies
Failure to comply with the law regarding doctors’ notes can have serious consequences for both employees and employers. Employees, who fail to submit a requested note, may suffer discipline, up to and including termination. These disciplinary measures could be seen as punitive, and unwarranted if the employee suffers from a disability which has not been accommodated in accordance with the defence of their human rights. In some cases, the discipline levied may lead to a complaint by the employee to the HRTO affirming a violation human rights legislation.
Non-compliance may also have an impact on an employer’s human rights responsibility to implement the policy equally amongst its employees. Complying only when the circumstances call for an employee’s medical information to be disclosed is not in compliance with the Human Rights Code.
Termination of employment for our refusal to provide a doctor’s note will give rise to a wrongful dismissal claim, and depends on many factors. For instance, length of service, age of employee, position of employee, availability of similar employment, and experience of employee, amongst others.
Employers will be found negligent if they terminate employment without first accommodating the employee with disability to the extent that it will not cause undue hardship, and that termination is seen as a failure by the employer to meet its human rights obligations.
Best Practices for Dealing with Doctors’ Notes in the Workplace
Best practices for documentation
Keep a record of the request for and submission of the doctor’s note and any conversations you may have had with the employee on the same. Although the document is an employee’s health information and should be kept in a separate place from the employee’s normal personnel file, it is the employer’s responsibility to show it had a legitimate business need to obtain the note. This generally means documenting the dates/duration of the absence and the reason for the absence (i.e. follow up visit, testing, etc.).
Maintain compliance
Be sure you are aware of, and complying with both the state and federal laws regarding leave for your employees. In addition to which leave law applies to your workplace, be certain that the form of disability management you use does not violate any workplace laws.
Be respectful
When asking for a doctor’s note, do so with respect to the employee and considerations of the employee’s privacy. In addition, refer to the note as simply a doctor’s note or an excuse note, rather than a "doctor’s excuse." The latter has a negative connotation. Both terms communicate the same essential information, while the former is respectful and the latter carries the connotation that the employee is doing something negative.
Recent Developments and Trends
Over the last several years, there has been a concerted effort by several states to enact laws regulating the use of doctors’ notes for work. In particular, several states have enacted laws easing restrictions on when an employer may request a note or prohibiting certain employers (i.e., schools or daycares) from requesting a note. This is part of a growing trend at the state level to make it easier for employees to exercise their right to sick leave under state law (e.g., paid sick leave laws). However, the COVID-19 pandemic over the last few years has acted as a countervailing force, with widespread public health concerns about contagious illness resulting in a greater demand for notes from employees that wouldn’t otherwise be observed.
For example, in recent years, the following states have passed sick leave laws that apply to both private and governmental employers, removing the rule limiting the frequency with which employers may require a doctor’s note, while effectively permitting an employee to use sick leave for "safe leave" (i.e . , to provide care for a family member facing a serious medical condition, to eliminate an existing health condition, or to access other health care services or a self-care purpose or preventative care):
- California
- Colorado
- District of Columbia
- Oregon
- Vermont
- Washington
- Jackson, Mississippi
By contrast, even during times when many workers were sick with COVID-19, the Centers for Disease Control and Prevention ("CDC") was recommending that employees not be required to present a doctor’s note to verify the need for sick leave or to return to work. On September 17, 2021, the CDC further explained that vaccination against COVID-19 was effective at preventing infections, recommending that to protect unvaccinated employees, all employers (whether public or private) "should consider requiring their employees to be vaccinated against COVID-19 to protect their own health and their coworkers’ health." While the CDC did not mention doctors’ notes in the context of vaccination, an employee unable to work due to getting vaccinated would need a note from their doctor or a note indicating the employer’s policy may be to overburden employees with having to procure notes.