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Apr26

Can an employer require a doctor’s note for days taken off sick?

My question applies to [employer's name deleted], a deli. I know for a fact that the Roxborough location in Littleton, Colorado has never asked for a doctor’s note before, not with their high school employees or there management staff. However, they do only with all the males employed under them, more specifically, the employees who receive compliments from the clients. I would like to know if it is legal for the management staff to threaten an employee who is vomiting at work with losing their job if they don’t magically make themselves better? My mother owns her own company, and I had thought, under the Better Business Bureau, that ANY threat from an employer is illegal, particularly if it targets a medical problem. For example, in 2003 I was hospitalized for medical issues I’ve had my whole life and [name of employer deleted] a major bookstore had threatened to fire me during my hospitalization and I contacted their corporate offices and found out that that is unacceptable. With the deli, however, their corporate offices, are the ones doing the threatening. Any advice of laws that may pertain to this would be greatly appreciated.

This question contains a number of interesting issues, which we’ll try to address in order.

In most cases, yes, an employer can legitimately require a doctor’s note when an employee calls in sick. Ideally, the employer would establish a consistent policy and enforce it. For example, many employers require workers who miss two or more consecutive days of work to furnish a doctor’s note, but not those who miss only one day of work.

If an employer required all male workers to furnish doctor’s excuses and did not require them from any female workers, that would probably be illegal discrimination based on sex. However, in this case it appears that the employer requires doctor’s notes only from some male workers, not all of them. That’s not discrimination based on sex. It may be unfair, but it’s probably not illegal discrimination at all.

It’s possible that the employer believes that certain male employees have taken excessive time off, or have an absenteeism problem, and the employer is requiring doctor’s notes from those “problem” employees. Ideally, the employer would have an objective standard to define “an absenteeism problem” such as more than 4 absences in 6 months. But even without it, the employer is probably not doing anything illegal.

An employer can legitimately fire an employee who is absent too many days. This is true, even if the employee has a doctor’s note.

It is not a good idea for the management of a deli – or any foodservice establishment – to pressure an employee who is vomiting into going back to work. The city or county health department would probably be very interested in such a complaint. Employers can lose their license for having an employee who is ill serving or preparing food.

The policies at your mother’s business have nothing to do with the policies at your place of employment.

The Better Business Bureau is a clearinghouse for consumer complaints, and has nothing to do with employment law.

The situation with hospitalization is different. Under the federal Family and Medical Leave Act, or FMLA, eligible employees are allowed to take up to 12 weeks of unpaid leave when they have a serious health problem. A doctor or other health professional must certify that the employee has a serious health problem that requires time off work. Normally, a hospitalization is a serious health problem. Other illnesses such as the flu or an upset stomach may not be. The FMLA applies to employers with 50 workers within 75 miles, so it may not apply to a small deli.

Normally, when an employee takes time off under FMLA, he must inform the employer within 2 days of returning to work, that the absence was FMLA leave. 

This entry was posted on Saturday, April 26th, 2008 at 9:20 pm and is filed under
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2 Responses to “Can an employer require a doctor’s note for days taken off sick?”

  1. David Says:

    Can a employer asks for explicitly excuse on a dr notes

  2. Caitlin Says:

    Hi David! In most cases, no, the employer cannot require a diagnosis from an employee or the employees doctor, even when the employee takes time off under FMLA. (One exception would be for a work-related injury.) The employer can require a note that states whether the employee had an incapacity, and that states the employee is fit to return to work. HTH, and thanks for reading the blogs!~ Caitlin

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