Asking for a Doctor's Note? Keep It Legal

We knew the drill in grade school: You say you're sick, then you hand over a doctor's note. The grow-up world isn't all that different, as employers commonly ask employees to verify sick leave with a note from a doctor.

Sure, asking for a doctor's note is, for the most part, legal -- but demanding a prying doctor's note isn't. Requiring too much information from employees for sick leave can land employers in legal trouble.

Here are five do's and don'ts when asking for a doctor's note:

1. Don't play "20 questions" for simple approval of sick leave. Err on the side of caution and stamp medical condition/diagnosis-related questions as "TMI." An employer can't assume the role of medical provider. All an employer really needs to know is that the employee's absence was for a medical reason and how much time he or she needs off.


2. Do ask for additional information, if appropriate. If an employee's absence is long and serious enough to trigger Family and Medical Leave Act (FMLA) protection, or if the employee is asking for "reasonable accommodations" under the ADA, an employer can require additional medical certification. But even then, the request needs to follow the FMLA and/or ADA's guidelines.


3. Don't request doctor's notes for on-and-off FMLA leave. An employer shouldn't request a doctor's note for each absence when an employee's physician already provided a single certification showing the need for "intermittent FMLA leave." Otherwise, it makes it look like the employer is discouraging employees from using their "intermittent FMLA leave" protection.


4. Do enforce call-in and no-call/no-show policies. Employers can't request individual notes for on-and-off FMLA-protected absences. But case law and FMLA regulations do allow employers to enforce call-in and no-call/no-show policies against employees on intermittent or reduced schedule leave.


5. Do apply doctor's note and call-in policies uniformly. An employer can ask for a doctor's note as part of its sick leave or attendance policy. But the policy needs to apply to all employees, and can't just target specific employees.

Bottom line: For the simple approval of sick leave, a general doctor's note should be enough. Spare yourself the drama by not asking more about the diagnosis.

Related Resources:

• Find Business and Commercial Lawyers Near You (FindLaw's Lawyer Directory)
• Labor: How much information can an employer request in a doctor's note? (Inside Counsel)
• Forgery Suspect Shows Up in Court with Forged Doctor's Note (FindLaw's Legally Weird)
• Is NYC's Paid Sick Leave Bill a Good Idea? (FindLaw's Free Enterprise)
• Legal to Deny an Employee's Vacation Request? (FindLaw's Free Enterprise)