We have an employee who is “sick” quite often. I suspect that there’s not any illness, just a desire to stay home, because the illnesses always seem to be at stressful times for the business. I have asked her for a doctor’s note for the file, and she gets very angry and says that by law she doesn’t have to provide a note for an illness of less than three days. My question is, can I issue my own rules about employees calling in sick, or is there a three-day rule? Also, do the FMLA and CFRA have rules governing requests for doctor’s notes? — Roberta, Benefits Manager in Ventura
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
No California or federal law prohibits an employer from asking an employee to provide a doctor’s note certifying his or her need for an absence of less than three days.
An employer may require an employee to provide a doctor’s note for any absence, regardless of how long it is. An employer should have a consistent policy and practice with respect to requesting doctors’ notes to avoid claims of discrimination based on disability or other protected status.
The federal Family and Medical Leave Act (FMLA) and the California equivalent, the California Family Rights Act (CFRA), both have rules governing requests for doctor’s certification, although neither law prohibits an employer from asking for a doctor’s certification for absences of less than three days. FMLA and CFRA typically apply to longer periods of absences although these leaves can be taken in small segments.
Both FMLA and CFRA permit an employer to require an employee, as a condition of taking leave for the serious health condition of the employee’s child, parent, or spouse, or for the employee’s own serious health condition, to obtain certification of the serious health condition from a healthcare provider. Both laws also provide that the employer must give the employee at least 15 calendar days to provide the certification after the employer requests it, or longer if it is not possible for the employee to obtain the certification within 15 calendar days, despite good-faith efforts to do so.
Thus, for leaves covered by FMLA and CFRA, the employee may already have started the leave (or returned from leave) before the time limit for the employee to provide the certification is up.
FMLA and CFRA have detailed rules governing when an employer may request “recertification” from an employee for a leave that is extended and when an employer may insist on a second opinion.
FMLA and CFRA also permit employers to require a release to “return-to-work” from a healthcare provider as a condition of reinstating an employee from an FMLA- or CFRA-covered leave, provided the employer has a “uniformly applied” practice of requiring such releases from other employees returning from illness, injury, or disability leaves.
Both CFRA and FMLA appear to allow an employer to require that the return-to-work release be provided before the employee is reinstated. It is possible, therefore, that an employee who is absent fewer than 15 calendar days may have to provide a doctor’s release to return to work before the employee is required to provide the doctor’s certification of the need for the leave.
Scott Silverman is a partner at the Los Angeles office of law firm Morrison & Foerster.