Can my employer request a doctor’s note if I call out sick and/or question me about calling out sick?

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Can my employer request a doctor’s note if I call out sick and/or question me about calling out sick?

In cases where an employee may calls out sick often, does the employer have the right to request a doctor’s note or question the legitimacy of the illness? Likewise, if the employee calls out sick and then is seen working somewhere else or doing another activity, can the employer use that for grounds for termination, and is it some sort of fraud? We have a part-time, no benefits employee at my company who repeatedly calls out sick after having worked all night at another job and has been caught lying about their whereabouts. Just making sure there’s an employer’s recourse.

Asked on January 13, 2011 under Employment Labor Law, Virginia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

In most states employment relationships are what is known as "at will", and VA is no exception.  What this means is that basically an employer can hire or fire someone for any reason, a bad reason, or no reason at all.  It can also increase/decrease salary/hours, promote/demote, and generally impose requirements as they see fit (this includes requesting to see a doctor's note).  In turn an employee can work for an employer or not, their choice. 

The exceptions to the above would be if there is a stated company policy contrary to this, or there is a union/employment agreement that does not allow for such action, or this situation has arisen due to some type of discrimination (i.e., for reasons due to race, religion, age, disability, sex, national origin, etc). 

Finally, as to any claim of fraud, there would seem to be none since this employee is not receiving benefits from you while working for someone else.


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