A new lawsuit filed by the U.S. Equal Employment Opportunity Commission illustrates the dangers employers face if they ask workers who took sick days to provide medical details.

The company that was sued is accused of improperly demanding disability-related information from its employees and enforcing progressive disciplinary measures when they refused to comply.

The case should serve as a warning that asking employees for details about their health after calling in sick can land them in hot water. And if the policy is too intrusive, it could lead to legal action and the potential of high legal and settlement costs.

In the case, the EEOC filed suit in U.S. District Court in Erie, PA against Erie Strayer Co., which had a long-running policy that required all of its employees who were absent from their jobs “for any period of time” to fill out an “authorization for disclosure of health information” form.

The form authorized the company to obtain from the employee’s health care provider a certification stating the “nature of the illness or injury” and the “physical limitations, if any.”

The employer’s policy included increasingly tough disciplinary measures (which could eventually lead to firing) against employees who were absent and failed to fill out the form, or if after filling out the form their medical provider failed to provide the required medical information, according to the EEOC.

The ultimate goal of this policy, according to the agency, was “for the express purpose of identifying whether these employees are disabled within the meaning of the ADA (Americans with Disabilities Act).”

The EEOC said the disciplinary measures the company subjected its employees to include “coercion, intimidation, threats and interference with the exercise and enjoyment of their protected rights for refusing to comply with its policy and practice of unlawful medical inquiries.”


<B>EEOC cites ADA violation</b>
The EEOC accused the company of violating the ADA, which protects employees from discrimination based on their actual or perceived disabilities. It filed suit after it had failed to reach a settlement with the company through its conciliation process.

“Requiring employees to reveal the specific nature of their medical illness in order to have necessary sick leave count as an excused absence is an unlawful disability-related inquiry under the ADA and not justified by business necessity,” regional attorney Debra Lawrence of the EEOC’s Philadelphia District Office said in a statement.

“Employees should not have to worry that this very sensitive, private and potentially harmful information will be used by the employer against them to unfairly exclude them from jobs that they could otherwise perform,” she added.

The EEOC is seeking compensatory and punitive damages and injunctive relief from the company.

The takeaway here is that to avoid breaching your employees’ rights to medical privacy, you should refrain from requiring details of their illnesses if they miss work. But you can ask for a doctor’s note, as explained in the sidebar below.

You may want to consider an added level of protection for your firm by purchasing an employment practices liability policy, which will cover costs associated with legal issues arising from how you manage your employees.

For more information, contact us and we can walk you through this important coverage.

Can You Require a Doctor’s Note for Absences?

You can generally require employees to supply a doctor’s note if they are absent for a period of time, but make sure that your policy says nothing about the nature of the illness.

The required note should not ask the medical provider to reveal the diagnosis or medical condition. Instead, require that the note include only that the employee was seen at a specific time and date.

If the doctor recommends the employee stay home, it should stipulate any period of partial or total incapacity to perform a job. Requesting more information could run afoul of the Americans with Disabilities Act.

Just make sure that you don’t make the same mistake that Dillard’s Department Store made in California. A California appeals court held that the retailer’s attendance policy violated the ADA because it required any health-related absence to be supported by a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc…).”