Can you ask your employees to provide a doctor’s note? Maybe not!
On September 10, 2014, Governor Brown signed a paid sick leave bill, AB 1522, into law, requiring California employers to provide paid sick leave to employees. Starting in July 2015, California employers now have to provide their employees with at least three paid sick leave days per year. So it’s now the law – if you have employees, they get sick time.
The requirement that employees provide a “doctor’s note” when they take sick time is nothing new. Such a policy is no doubt common among California employers. But is it legal? How’s this for a lawyerly answer: Maybe.
A few months back, the Department of Industrial Relations (DIR), the agency tasked with enforcing California’s Paid Sick Leave law, put out some online training dealing with the new sick time law. In this training the DIR stated that requiring employees to provide doctors’ notes could be construed as unlawful interference with their statutory right to the leave. Notice the use of the word “could be.”
Many have asked the DIR for clarification – one attorney emailed the DIR directly about the issue, and the DIR’s response was that since there’s nothing explicit in the law that allows employers to ask employees to provide doctors’ notes, conditioning an employee’s leave on the employee providing such a note “can arguably interfere with the employee’s use of paid sick leave.” The DIR has vowed to continue analyzing whether denying leave for failure to provide such a note constitutes retaliation “according to the unique facts of [each] case.”
So, employers have to ask themselves the following question: “Is it worth it to require my employees to provide a doctor’s note when they take a sick leave?” The reason to require a note is to prevent abuse, i.e. to ensure that sick days are only taken when employees are sick. Yet the risk of an employee’s claim of retaliation of interference with their leave is very real indeed. So, is it worth it? That, dear reader, is up to you. But know that the law is unclear on this point, with the only guiding light coming from an agency that loves using words like “can” and “may” instead of “will” and “shall.” So until the DIR says unequivocally one way or another, understand that your “doctor’s note” requirement could result in headaches for you.
This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott ([email protected]ers.com). For specific employment law advice or other legal assistance, contact Gubler & Abbott , (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com). Read Mr. Abbott’s blog on employment law issues at http://work-law.blogspot.com.