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Don’t pry too deeply when seeking proof of sick leave

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Under her employer's sick-leave policy, corrections officer Belinda Fountain had to provide a diagnosis of her medical condition every time she was absent.

This "medical certification" had to be on doctor's letterhead, include a diagnosis of the condition treated, state that the employee was unable to work and offer a prognosis for any absence charged to sick leave or family sick leave, regardless of its duration. If a supervisor rejected the note, the employee could be punished.

Fountain sued, challenging the policy under the Americans with Disabilities Act (ADA) as being too detailed and heavy-handed. A district court agreed.

Reason: The ADA doesn't let an employer conduct medical inquiries or exams that may reveal an employee's disabilities or perceived disabilities, except when the inquiry is "shown to be job-related and consistent with business necessity." To fall under this exception, employers must show they made the inquiries because there was a good reason to suspect the employee "would be unable to perform essential job functions or would pose a danger to the health and safety of the workplace." (Fountain v. New York State Dept. of Correctional Servs., 99-CV-389, N.D.N.Y., 2002)

Advice: You need more reason than just a few days' absence from work to suspect that an employee is unable to perform her job.

Review all your policies that touch on medical exams or inquiries. A problem with this employer's policy was that it requires the worker to provide a "diagnosis," even in general terms. "Received chemotherapy," for example, could divulge a disability or perceived disability.

If you're concerned about a returning employee's ability to do the job or about posing a risk to the workplace, explain and document the basis for your concerns when requesting certification of her readiness to return.

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