Can My Employer Ask for a Doctor’s Note When I Use Sick Leave?
Jay Stafford | December 28, 2020
In addition to this year’s cold and flu season, Marylanders are also facing rising numbers of COVID-19 cases. Whether it’s a simple cold or something more serious, employees should not be forced to come into work when they are unwell.
One of the most common questions employment attorneys are asked is whether employers can ask for a doctor’s note or similar documentation when an employee uses sick leave. The answer is somewhat complicated. If you have questions about your employer’s leave policies, an experienced Maryland employment lawyer can help you get the answers you need.
What Does Your Employer’s Leave Policy Say?
The first step when you have a question about your employer’s leave policy is to read your employee handbook, which should contain your employer’s current leave policy. While the handbook cannot trump state of federal law, it may contain the answer to your question. More importantly, it may lay out what your employer can and cannot ask for in detail. In addition, the employee handbook may provide detailed information concerning your responsibilities as an employee when requesting sick leave. If you decide to consult with a Maryland employment lawyer, one of the first questions they will ask is whether your question is addressed by your employer’s leave policy.
The Maryland Healthy Working Families Act
Maryland passed the Maryland Healthy Working Families Act in January of 2018, which required employers with 15 or more employees to provide up to 40 hours of paid sick leave. For employers with less than 15 employees, they are required to provide up to 40 hours of unpaid sick leave. As a result, employees in Maryland have a right to sick leave, either paid or unpaid. However, the Act does have certain requirements:
- You are entitled to use sick leave only for health-related reasons, although the Act does permit you to take leave for family members who are in need of medical care.
- If your need to use sick leave is foreseeable (such as a scheduled doctor’s appointment), your employer may require you to provide “reasonable” notice of not more than 7 days in advance. Your employer’s leave policy may provide important details concerning what is considered “reasonable” and precisely how many days in advance you must provide notice.
- If your need to use sick leave is unforeseeable, you must provide notice to your employer as soon as practicable.
Notice vs. Verification
It is important to note that providing notice to your employer is not the same as verifying that you received medical care. Notice simply means that you will inform your employer of your need to use sick leave. If your employer’s leave policy requires that you provide written notice 5 days in advance of a foreseeable need to use sick leave, all you may need to do is tell them that you have a doctor’s appointment.
However, the Act does permit employers to ask for “verification” if you will be absent for three consecutive scheduled shifts. This means, in short, that you may have to provide proof that you were in need of actual sick leave. Again, your employer’s leave policy may provide further detail regarding what they may ask for as “verification.” This could include a note from your doctor stating that you were seen on the date in question. However, they cannot force you to disclose any health-related issues that may be covered by state or federal privacy laws.
Is Your Employer Engaged in Discrimination?
No matter what the law requires or your employer’s leave policy contains, the rules pertaining to employee sick leave must be applied uniformly to everyone. As a result, your employer may be authorized to ask for verification under the law but may be engaged in discrimination if they only demand verification for certain employees.
Family Medical Leave Act (FMLA) and COVID-19
The federal Family Medical Leave Act requires employers with 50 or more employees to provide up to 12 weeks of sick leave. As a result, you may qualify for protection under the FMLA if you must take an extended leave of absence from your job for health-related reasons. However, your employer may require you to provide verification in order to qualify for protection under the FMLA.
People who are unable to work due to COVID-19 may qualify for protection under either the FMLA or the Families First Coronavirus Response Act. In those situations, you should be prepared to provide verification.
Contact Maryland Employment Lawyer J.W. Stafford Today
While your employer is entitled to prevent abuse of their sick leave policy, they are not allowed to harass or discriminate against their employees. If you believe your employer is violating your rights, call us today at 410-514-6099 or contact us online to schedule a consultation to discuss your case.