• While doctor’s notes might be needed for the FMLA process, employers should be aware of ADA restrictions on medical inquiries.
• It is unlawful for an employer to ask an employee about a disability or the severity of a health condition in many situations.
• Employees are responsible for making employers aware of accommodations needed for health conditions.

The reason many companies require a note for an absence of three or more days is that a “serious health condition” under the Family and Medical Leave Act (FMLA) includes situations that involve three or more days of incapacity. Asking for a doctor’s note — or better a certification — can help determine if the absence could qualify for FMLA leave.

This might be a situation of trying to prove the negative — if the employee didn’t visit a doctor and can’t provide a note (or certification), the time off might not qualify for FMLA leave. If the employee does provide a doctor’s note, however, the FMLA process should be initiated.

While the Americans with Disabilities Act (ADA) restricts when employers may make medical inquiries (or require medical exams) of employees, employers may ask employees to justify the use of sick leave by providing a doctor’s note or other explanation, as long as they have a policy or practice of requiring all employees, with and without disabilities, to do so.

Despite the ADA restrictions on medical inquiries, that law also makes the employee responsible for initiating an accommodation request, or to otherwise make employers aware of the need for time off or other workplace change because of a medical condition. Ideally, the employee should do this before performance or attendance begins to suffer.

A single brief absence probably won’t indicate a disability. If, however, an employee develops a pattern of absences, employers might have some concerns. This is where they must walk a fine line. Employers may not ask if the employee has a disability, nor can they ask about the nature or severity of a condition. Employers may, however:

• Inform the employee that regular and reliable attendance is expected;
• Indicate that the company can designate certain absences as “unexcused” if the time off is not protected, and clarify that these absences can result in discipline or termination; and
• Remind the employee that the company has a duty to provide accommodations or grant time off for certain conditions, but the employee is responsible for making employers aware of these conditions.

By following this process, employers should be able to avoid making inappropriate medical inquiries, particularly if the expectations and employee responsibilities have been clearly communicated. Then, if the absences lead to discipline or termination, the responsibility for this outcome should be on the employee, rather than the company.

Even when a doctor’s note is required by the company, employees are not entitled to wages for the time spent obtaining the note. Employers may eventually face a challenge from an employee who claims that the time visiting the doctor should be paid because the company required the visit.

However, the federal Wage & Hour Division has addressed this in an Opinion Letter (FLSA2005-3NA, Time spent obtaining medical verification) which clarifies that these kinds of doctor visits are not required as a condition of employment, only as a condition of obtaining sick leave benefits, so the time is not “working” time.