U.S. laws limit right of boss to doctor diagnosis

CAN THEY DO THAT?

October 05, 2005|By CARRIE MASON-DRAFFEN

I work for a large corporation that requires employees to bring in a doctor's note if we are out sick for three or more days. That's not the worst of it. The company also requires the note to include a diagnosis, prescribed medications for the illness and how long the employee was under a doctor's care. My physician refuses to include the diagnosis because he says it's illegal to publicize it. But the company will not compensate employees for sick leave unless the note includes a diagnosis. Is this legal?

Alert human resources: Under some federal statutes the practice could be illegal.

"It is considered an impermissible medical inquiry under the Americans with Disabilities Act because it may tend to reveal an employee's disability," said Jeffrey Schlossberg of the law firm Ruskin, Moscou, Faltischek in Uniondale, N.Y. "The employer is supposed to focus on whether an employee who was out sick is capable of performing his or her job functions, and requiring a diagnosis generally does not achieve that goal."

As always, some exceptions come into play. A company, for example, can require a diagnosis if it can prove that an employee is abusing sick-leave policy, Schlossberg said. In addition, when an employee who works in a safety-sensitive area, such as truck driving, returns after an illness, the company can inquire about a diagnosis, he said.

"The point, however, is that the exception is very limited and case-specific," he said. "The employer has a very high burden to establish the right to ask for a diagnosis."

Under some statutes, the policy may be permissible, said Carolyn Richmond and Linda Rosenzweig of Seyfarth Shaw, a New York law firm.

They advise employers to restrict requests to basic job-related information, such as whether the employee is fit to return to work, and whether the worker can meet the essential functions of the job. They advise seeking a diagnosis only where required by statute.

carrie.draffen@newsday.com.

Carrie Mason-Draffen is a columnist for Newsday.

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