September 22, 2016 


I’m concerned that an employee who returns to work before they are 100% better can infect, and put my practitioners, and more importantly, my patients at risk. Can I request my employee to provide a doctor’s note they are not contagious and cleared to return to work?


Dr. X


This answer was researched and is provided by Attorney Issac Cwibeker of K&K.  

Generally no, because any medical inquiry into an employee’s sick leave may run afoul of the ADA as workplace discrimination.[1] But in your scenario, with regards to a doctor’s office,  it may be allowed, because it is arguably job-related and a “business necessity.” Since proper hygiene and safe, sanitary measures are vital in running a healthcare facility, no matter how big or small, it is arguably a “business necessity” to ensure that all doctors and staff are healthy and able to serve their patients.  If this scenario would be in a different employer-employee setting, the answer might be different.

You are allowed to require your employees to provide a doctor’s note verifying that they were in fact sick if they were out for more than three consecutive days. But the required documentation should not seek a specific diagnosis; rather, it should include only that a licensed healthcare practitioner saw the employee on a particular date and time.

If you reasonably believe that an employee has an illness that presents a direct threat to the health and safety of other individuals at work, requiring a doctor’s note stating that the employee is no longer contagious could violate the ADA if you are unable to demonstrate certain criteria.  The two factors to consider when making this medical inquiry are: 1) is it job-related, and 2) is it consistent with a business necessity. 

The Equal Employment Opportunity Commission, which has statutory authority to enforce the ADA, interprets the law as permitting employers to inquire into an employee’s sick leave when they meet the above criteria. In enforcement guidance, the agency states:

Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."
. . .
Sometimes this standard may be met when an employer knows about a particular employee's medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.[2]

The agency goes one step further, and permits an employer to request a returning employee undergo a medical examination clearing them for work:

17. May an employer make disability-related inquiries or require a medical examinationwhen an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee's ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

There’s a recent federal case, Lopez v. Hollisco Owners' Corp., 147 F. Supp. 3d 71 (E.D.N.Y. 2015), which is currently on appeal that outlines the above. In that case, the employer requested the employee vacate the premises and obtain a doctor’s note clearing him for work after he reported to his supervisor that he might have Hepatitis B or C. The employee sued the employer for discrimination. The court held that the employer had a legitimate and non-discriminatory reason to require the doctor’s note because it was a business necessity.
If your employee is in direct contact with patients or with other practitioners who could infect their patients, requiring a clearance to return to work may be the best approach to protect your facility from an infectious outbreak, even as minor as the common cold which may jeopardize your most vulnerable patients.

Therefore, if your sick leave policy is designed to ensure that employees can safely return to work without infecting your practitioners or patients, then most probably any job-related concerns are consistent with a business necessity and demonstrate that your policy does not violate the ADA.
However, each employer setting is unique, and courts have had a difficult time coming to a uniform application of the “business necessity” exception. Always seek out legal advice before implementing or adopting any new sick leave policies. For more information or legal assistance, please feel free to contact ____________.
[1] The Americans with Disabilities Act of 1990 limits an employer's ability to make disability-related inquiries or require medical examinations during employment. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).
[2]See EEOC Agency Guidance Opinons, available at