Diversity & Inclusion

Employer can insist that ‘doctor’s note’ come from a doctor

by Jennifer Suich Frank and Samuel D. Kerr

Q One of our employees went to a holistic healer who isn’t a certified healthcare practitioner, and he advised her that she needs a week off work. He won’t write her a doctor’s excuse and will only speak to someone via telephone. Our attendance policy states that missing that much work requires a doctor’s note. Are we violating the employee’s rights if we discipline her for an attendance policy violation?  Woman lying face down having cupping acupuncture, mid section

A No, you are not violating the employee’s rights if you insist on a doctor’s excuse that comes from a certified healthcare practitioner and she fails to provide one.

Many employers have a policy of requiring a “doctor’s note” when employees are absent because of sickness. Such a policy may require that the doctor’s note come from a doctor or a certified healthcare practitioner. Your policy is a good example of this type of policy, requiring that an employee who takes a week off work for health-related reasons substantiate the need for time off with a doctor’s note. It’s legally acceptable to request a doctor’s note as part of an attendance or sick leave policy. However, you must apply the policy consistently and uniformly in order to avoid challenges.

To avoid any potential violations of the Americans with Disabilities Act (ADA), you should not require that the doctor’s note provide a medical diagnosis or details about the employee’s condition. It should only include the date and time of the medical appointment and indicate how long the employee will be partially or totally incapacitated from performing her job duties.

You mention that your employee visited a holistic healer who isn’t a certified medical practitioner. Most employers want some assurance that the person excusing an employee from work has the sort of credentials they can rely on for a bona fide reason for the employee’s absence, especially for more than a few days. That’s why the Family and Medical Leave Act (FMLA) defines a “healthcare provider” for purposes of medical certification as a doctor of medicine or osteopathy who is authorized to practice medicine or perform surgery, or another person capable of providing healthcare services who is authorized to practice in the state, such as a podiatrist, dentist, psychologist, or chiropractor.

A “holistic healer” could be someone who practices complementary and alternative medicine (CAM), a field that has been gaining popularity in recent years. There are many therapies available under the umbrella of CAM, including mind-body medicine, energy medicine, massage, biologically based practices, and whole medical systems (homeopathy, naturopathy, and ancient healing practices).

Many of today’s conventional doctors or physicians didn’t receive training in CAM and therefore may not understand or trust it. Conventional medicine values therapies, methods, and treatments that have been tested and researched and demonstrated to be safe and effective. That’s why the FMLA requires certification from a doctor or another authorized healthcare practitioner and why employers want to incorporate the same level of reliability into their absence policies.

In addition, some CAM practitioners may make claims about an individual’s condition (such as that the person became sick due to a block in energy flow) and their ability to cure diseases, or even request that an individual forgo treatment by her conventional physician. As a result, many doctors (and employers) are cautious about CAM practitioners.

Nevertheless, CAM and holistic wellness approaches are becoming more common in the workplace, with more employers seeking to incorporate holistic approaches into their healthcare and wellness options by offering on-site yoga, meditation, massage, and stress management programs. This approach is another way to reduce healthcare costs and encourage employee engagement in the workplace. Finally, CAM may become more accessible for employees because employers are offered incentives to promote employee health and wellness activities under the Affordable Care Act (ACA).

Bottom line. Even with the ever-increasing popularity of holistic or alternative medicine, South Dakota employers can require that a doctor’s note supporting an employee’s absence due to sickness come from a physician or some other certified medical practitioner, as long as the policy is administered consistently and uniformly.

Jennifer Suich Frank is an attorney with Lynn, Jackson, Shultz & Lebrun, P.C., practicing in the firm’s Rapid City, South Dakota, office. She may be contacted at jfrank@lynnjackson.com.

Samuel D. Kerr is an attorney with Lynn, Jackson, Shultz & Lebrun, P.C., practicing in the firm’s Rapid City, South Dakota, office. He may be contacted at skerr@lynnjackson.com.