(This guest post was written by attorney Glenn Israel from Bernstein Shur)
Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.
In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.
The take away point is don’t ask too many questions. Here are some things you can ask an employee:
- Do you need to take a medical leave of absence?
- Would you like me to provide you with the FMLA leave forms?
- Is there a reason why you are having difficulty performing the essential functions of your job?
- Do you want to discuss an accommodation for a condition that affects your ability to perform the essential functions of your job?
- Was your recent absence due to a medical condition?
- Can you provide a doctor’s note confirming that your recent absence was due to a medical condition?
- Can you provide a doctor’s note confirming that you are able to safely resume your regular work duties?
You should avoid asking questions about the employee’s medical history, diagnosis or treatment. In many cases, the employee or the employee’s doctor will provide information to you voluntarily. However, if the information is not forthcoming, it is best to focus your inquiries on work capacity and reasonable accommodations rather than on medical issues.