Can an employer ask an employee for a doctors note if the employee says he is going to the doctor?

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Can an employer ask an employee for a doctors note if the employee says he is going to the doctor?

We are a small company. We have an employee who claimed to be going to the doctor when he called in sick on Monday. Then Wednesday came around and he is still out sick and claims to be going back to the doctor. He has already been out seven days in the last three months. Does the HIPPA law or any other law prevent employers from asking for this documentation? If we can ask for it, does it matter that the employee has an workmen’s compensation claim but the illnesses he is claiming to go to the doctor for are unrelated to the claim?

Asked on March 14, 2012 under Employment Labor Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Many employers do (and can) ask for doctor's notes from employees, usually as it relates to attendence or safety issues.  Many employee handbooks actually provide that if an employee is out for more than three days because of a medical condition, that they present a note to the employer stating that the employee has been under their care and is able to return to work.  FMLA actually requires a defendant to have a doctor certify their condition in writing before being eligilbe for leave.  Other employers will not pay "sick time" unless the employee presents a doctor's note.  The important thing to remember is consistency and privacy so that you don't get into a retaliation or privacy related lawsuit.  If you ask for a doctor's note from one employee, you need to require it of others in the same situation.  If your employee handbook already provides for this process, then you're covered.  If you don't have an employee handbook, invest in the time and money to get a well written one.  With regard to privacy issues, many companies set up a separate medical file that remains in a secured area.  This prevents the information from being easily accessed or distributed.  If this employee has already filed a worker's comp claim, then you probably already have a system in place for protecting the medical privacy of employees, just add a section for non-worker's comp information.  It sounds like this employee is pushing some limits.  You can set boundaries, just make sure that whatever boundaries you choose are enforced equally.


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