Human Resource Blog

Doctors note/certification

An employee using 3 days of sick time for surgery has requested time off. Question: Is it legal to request a doctors certification and release, as in his request for time off the employee stated there are going to be some limitations????? Seems logical, but I can’t find concrete or a straight answer…

Thanks,

Yes, you can request a doctors certification that the employee has a serious health condition, but you cannot require that the employee or his doctor furnish you with a diagnosis, under HIPAA, the Healthcare Portability and Accountability Act.

If you have more than 50 employees within 75 miles, you are required to give this employee time off under FMLA, the federal Family and Medical Leave Act. For your own protection, you should require that the employee take FMLA for any serious health condition even though he is planning to be off only for a few days. FMLA is usually unpaid, but it requires that employees be permitted to use paid sick leave as part of FMLA. By having the sick time and FMLA run concurrently, you limit the employees total absence from work to 12 weeks, should there be complications.

You are permitted to require a doctor to certify that the employee genuinely has a serious health condition. Surgery almost always qualifies. The U.S. Department of Labor even has a suggested certification form here: http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf

Even if your company is smaller and does not require you to give FMLA, you would be wise to use a similar certification form for the employee. Normally, the certification form is completed when the employee requests leave, before taking it.

Learn more about FMLA at: http://www.dol.gov/esa/whd/fmla/

If the employee was not using FMLA, you could legitimately require a doctors excuse for an absence of one day or more, as long as that was company policy and you applied it fairly. (If you have never required an employee to furnish a doctors note after taking 3 consecutive days of non-FMLA sick leave, you cannot start now unless you issue a formal, written policy change.) But again, you cannot require a diagnosis. Employees and their doctors are under no obligation to disclose private health information to employers under HIPAA.

Since you are aware that the employee will be having surgery, then you can and should require a doctors release to return to work. This is also called a fitness for duty release. This is actually the primary reason that most employers require doctors notes after a period of absence –to determine that the employee is physically able to work. Securing such a release greatly reduces the employers liability. Be sure that the employee presents the release before beginning work. In many cases, the employee will have a release a day or so in advance of his first day back at work.

Also be aware that if the employee has a partial release, permitting him to perform light duty, as an employer you do not necessarily have to accommodate that request. In that situation, you may want to post another question to address the issue.

Read more about HIPAA at: http://www.dol.gov/dol/topic/health-plans/portability.htm