One of the most common questions we receive is whether or not a manager can ask/demand the reason a person is calling off due to illness. They want details. This issue is on the rise, as one example, in California because of the new sick leave law. Employees are apparently taking advantage and managers are trying to curtail the call-ins.
Most managers are unclear if they have the right to ask for details as to the nature of the illness. In general, employers are allowed to ask for the details of the illness. In my opinion, it’s reasonable for a manager to ask an employee what’s wrong. Otherwise, it would be a no-questions-asked sick leave policy, and that would quickly be abused as noted above. Simply asking what is wrong requires the employee to give a brief and general explanation about why he or she is absent, e.g., the employee’s child is sick, the employee has a general illness or the employee has a major or minor injury is not unreasonable. Follow-up questions should be limited to asking about when the employee expects to return to work. Do not get too nosey!
Now, let’s also understand there’s a key exception to the opinion stated above if the reason for the absence is a medical condition that’s protected under the Americans with Disabilities Act. The ADA offers protections to employees with physical or mental impairments that substantially limit one or more major life activities such as seeing, hearing, speaking, walking or breathing. A person with, for example, epilepsy, HIV or a substantial hearing or visual impairment would generally be covered, but someone with a minor condition of short duration – such as a cold, the flu or a sprained ankle – generally wouldn’t be covered so you have a little more room to ask questions.
Keep in mind, the ADA does allow an employer to make inquiries into the ability of an employee to perform job-related functions and therefore, the manager can and should still ask the employee with a probable ADA situation when he or she expects to return to work. The ADA does not permit managers to push employees for information beyond questions that are “job-related and consistent with business necessity.” So if, for example, the employee explains that he/she is calling in sick because they need dialysis treatment or need to check into a mental health facility (both things likely covered by the ADA), the employer can ask when the employee expects to return to work but shouldn’t question beyond that.
Can the employer require an employee to produce a doctor’s note verifying the illness?
Employers can indeed require doctors’ notes when using sick leave. However, they should not require the note to include a diagnosis or other private medical information; rather, the note should simply state that they were seen by a medical office and/or confirm they needed to use sick leave. California employers should be a little more cautious here if the nature of the call-in falls under their new sick leave law. Let it go unless the time off exceeds the three days offered by law.
Consider this. Just because the law allows employers to require doctors’ notes doesn’t mean they should do that. Minor illnesses, such as colds and the flu, don’t generally require a doctor’s care, and requiring a doctor’s note in order to use sick time discourages employees from staying home when they’re ill. That’s an unfair burden on truly sick employees, who will have to drag themselves to a doctor when a few days of resting in bed will cure them. This tactic also drives up health care costs by pushing people to the doctor when they only need home care. It also signals to your employees that you don’t trust them enough to treat them like adults. Use some common sense here and not an emotional response that you really believe they are really off good timing it somewhere (which honestly they maybe but who has the time to figure that out!).