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Getting medical excuse policies right: Know what kind of note you can require

Determining when an employee’s medical condition requires time off from work can get tricky. No one wants to require a worker too sick to be productive to come to work, but employers also have to be on guard against employees trying to use sick days to squeeze in a little extra vacation time. 

Many employers try to get around the problem by requiring a doctor’s excuse for absences of a certain length. But such policies—no matter how straightforward they may sound—also can get complicated.

Recently a group of attorneys who focus on employment law issues was asked how far an employer can go when including a requirement for a doctor’s note in an absence policy. The issue came up when an employee said her holistic healer advised her to take a week off work.

The holistic healer, who wasn’t a certified practitioner, refused to write an excuse and would talk to the employer only by telephone. The employer’s policy required a doctor’s note for missing that many days. The employer wanted to know if disciplining the employee under the attendance policy would violate the employee’s rights.

The answer? Probably not.

Consistent enforcement
“As long as you apply your policy fairly and consistently, you should be able to discipline the employee for the violation,” Ryan B. Frazier, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, wrote in the February issue of Utah Employment Law Letter. “What you accept to excuse an absence is entirely up to you unless the worker qualifies for Family and Medical Leave Act (FMLA) leave.”

Jason R. Mau, an attorney with Greener Burke Shoemaker Oberrecht, P.A. in Boise, Idaho, agrees. “As long as you enforce the policy consistently, you are not violating the employee’s rights by disciplining her for the violation,” he wrote in the February issue of Idaho Employment Law Letter. That’s true even if the employee has a serious health condition covered by the FMLA, since that law allows employers to deny leave if an employee fails to cooperate with a request for certification.

Employees who qualify for FMLA leave and have it certified can’t have such leave counted against them under an employer’s attendance policy, but that doesn’t mean employers are required to accept an excuse from an uncertified practitioner. Under the FMLA, certification must be provided by a “healthcare provider,” which the law defines as a doctor of medicine or osteopathy authorized to practice medicine or surgery in the state or “any other person determined by” the secretary of labor “to be capable of providing health care services,” Frazier explains.

Frazier says the U.S. Department of Labor’s list of acceptable healthcare providers includes podiatrists, dentists, clinical psychologists, optometrists, certain chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, certain Christian Science practitioners, and providers recognized by the employer or the employer’s group health plan.

“An uncertified holistic healer is not a recognized healthcare provider from whom you must accept an excuse,” Frazier wrote. “Further, you have the right to request a second opinion at your expense. In that instance, you may select your own healthcare provider.”

Explain policy to employee
Even though a policy requiring a note from a certified medical professional is valid, the employer would be wise to take care in enforcing the rule, Peyton S. Irby, an attorney with The Kullman Firm in Jackson, Mississippi, says.

Before issuing discipline, “explain to the employee the consequences of failing to abide by the requirement of providing the doctor’s note, such as denial or delay of FMLA-qualifying leave and/or discipline under the attendance policy, and give her time to secure a doctor’s note,” Irby wrote in the February issue of Mississippi Employment Law Letter.

Jacob M. Monty, an attorney with Monty & Ramirez, LLP in Houston, Texas, also advises talking to the employee about the situation. “If the employee fails to provide adequate documentation after the conversation, you will be less likely to violate her rights by disciplining her for attendance issues,” he wrote in the February issue of Texas Employment Law Letter.