My employee has used up all her protected sick leave, but still calls out sick regularly and always returns with a doctor’s note. Can we discipline her for missing too much work, or does the fact that she brings in a doctor’s note mean we can’t do anything?
Despite what many employees believe, a doctor’s note is not automatically a “Get Out of Jail Free” card when it comes to their job.
When an employee presents you with a doctor’s note after an absence, you will need to determine whether the absence should be legally protected, such as under the disability accommodation or family leave laws, or whether the absences simply are unprotected sick days, such as for a cold or a medical appointment for a minor ailment.
Consider Reason for Absence
When determining whether discipline is appropriate, the employer must first consider whether the employee’s absence qualifies as either:
- A “serious health condition” protected under the federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA); or
- A “disability” protected under the Americans with Disabilities Act (ADA) and/or California’s Fair Employment and Housing Act (FEHA).
In making that determination, the employer should not only look to the information provided in the doctor’s note, but also other information the employee may have provided to their supervisor, manager or human resources.
For example, an employee’s note may simply say something like “Suzy was seen in our office on March 15, 2024,” but Suzy told her supervisor she went to the doctor to seek treatment for her seizure disorder.
Because a seizure disorder can be both a disability and a serious health condition protected under all four laws mentioned above, the employer is now on notice that it should consider which of these legal protections might apply.
Employer Responsibility
It’s important to remember that an employee does not specifically have to ask for “family leave” or walk into the human resources office saying, “I need a reasonable accommodation for my disability.” The law essentially presumes that employees are not experts in these laws and focuses instead on whether the employer knew or should have known that the employee had a disability or serious health condition entitling them to legal protections.
If the employer knows (or should have known), then the responsibility falls to the employer to:
- Engage in an interactive process to determine whether a disability can be reasonably accommodated, such as by excusing the absences related to the disability; or
- Advise the employee that the time off may be designated as protected FMLA/CFRA.
Medical Certification
Under either circumstance, the employer will be entitled to further medical certification beyond a simple note that the employee was seen by the doctor on a particular date.
The certification will need to substantiate that the employee has a disability or serious health condition, and provide certain additional information depending on which law applies.
Note that different employer size thresholds must be met for these laws to apply to a business, and that the FMLA and CFRA require the employee have one year of service and have worked at least 1,250 hours in the past year to be eligible for protected time off.
Keep in mind that there are a few other situations where a doctor’s note may provide legal protection from discipline, such as pregnancy disability leave, organ or bone marrow donation leave, or time off for medical treatment related to a crime or domestic abuse.
Ellen Savage, Employment Law Expert, CalChamber
CalChamber members can read more about Certification for Family and Medical Leave in the HR Library. Not a member? See how CalChamber can help you.
