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In NYC, can I require documentation for employee out on sick leave?

Question:

Hi Jennifer,

We are doing our best to comply with the NYC Sick Leave requirements.  I am concerned I have employees taking advantage. What type of proof can I require? 

Appreciate your advice. 

Thanks, Dr. C


Answer: 

Any day the employee is out on sick you can ask them to verify in writing they are out because they are sick.  You cannot require a doctor's note until after the employee is out for 3 consecutive days.  See below from NYC Consumer Affairs site - 

http://www1.nyc.gov/site/dca/about/paid-sick-leave-FAQs.page#3

27. Can an employer ask the reason an employee is out sick if an employee uses sick leave under the law?
No. An employer cannot ask the reason why an employee is out sick. The employer can: Require a note from a licensed medical provider after more than three consecutive days of sick leave attesting to both the existence of a need for sick leave and the amount of work hours or days used as sick leave. Ask for a date on which the employee is “cleared” to return to work. Ask for the employee to submit written verification that the employee used sick leave for sick leave purposes. A model form that employers can use to verify use of sick is available atwww.nyc.gov/PaidSickLeave However, the employer cannot require that the employee or a health care provider disclose any personal health information under the Paid Sick Leave Law.

28. Can an employer require an employee to provide documentation from a licensed health care provider?
Yes, but only if the employee uses more than three consecutive workdays as sick leave and only if that requirement is part of a written policy that the employee received prior to using the sick leave. “Workdays” means the days or parts of days the employee was scheduled to work had the employee not used sick leave. The employer can require the employee to provide written documentation signed by a licensed health care provider confirming both (1) the need for the amount of sick leave taken and (2) that the use of sick leave was for a purpose authorized under the law. The law prohibits employers from requiring the health care provider to specify the medical reason for sick leave. Disclosure may be required by other laws. See VII. OTHER FEDERAL AND STATE LAWS RELATED TO LEAVE TIME.

29. How much time must an employer allow an employee to submit written documentation if that employee used more than three consecutive days of sick leave?
If an employer requires an employee to submit written documentation from a licensed health care provider, the employee has seven days from the date he or she returns to work to submit the documentation. The employee is responsible for the cost of such documentation not covered by insurance or any other benefit plan.

30. Can an employer require documentation if the sick leave is not for more than three full days? 
No. An employer can ask for the employee to submit written verification that the employee used sick leave for sick leave purposes, but cannot require medical documentation when the employee uses three or less than three consecutive workdays as sick leave. A workday does not need to be a “full” day if the employee works part time. A model employee verification form is available at www.nyc.gov/PaidSickLeave.


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