Q: Can I require a doctor’s note when employees are absent due to illness?
A: You don’t mention what state you’re located in, and that does make a difference. Roughly 21 states, as well as many other cities and counties, have mandatory sick leave laws. If you are in a state, city, or county in which this applies to you, then applicable law will dictate if and/or when you may ask for verification from a doctor when an employee is absent due to sick leave reasons. In most cases, the answer will be: not until the employee has been absent for at least 3 or more consecutive days.
If there is no sick leave law, or an employee has used up their sick leave benefits, then asking for a doctor’s note may be more permissible. There are several things to consider before doing this:
- In the big picture, a note from a doctor will not prove the person was actually sick. Health privacy laws mostly prohibit doctors from divulging specific health information to other parties. At best, this note will prove the individual went to the doctor, which is relatively meaningless.
- If an individual was not otherwise going to see a doctor because the illness did not warrant such action (e.g., colds, flus, digestive issues), then forcing an employee to go puts their time under your control, which may require the time spent getting this note to be paid. Further, many states have requirements that such out of pocket expenses (e.g., the office visit bill) must be covered by the employer.
- A note will likely cause confusion with the employee because handing over a doctor’s note is generally seen as “excusing” them from their absence. If this is the case, then the absence shouldn’t count against their overall attendance record, which means they shouldn’t experience other consequences such as write ups, poor performance reviews, etc. While the note does not necessarily mean they’re excused by any law, if that’s not the case, then it seems like asking for one is fruitless for all involved.
It is our recommendation that you eliminate any requirement for employees to provide doctor’s notes for absences resulting from various seasonal illnesses*. Ultimately, they bring little value to the table, and often create more headaches due to resentment, distrust, conflict, and other such problems with employees that may come along.
*Notes from doctors may be required when considering substantial leaves of absence, disabilities, pregnancies, etc.
Q: I hired a new receptionist who started this past Monday. A week before her start date, I sent her all the onboarding forms including a W-4 and Form I-9. On her first day to work yesterday, she presented her driver’s license for List B of the Form I-9 but asked me if she could show me a copy of her social security card instead of the actual card since she lost it during a recent move. After a quick Google search, I let her know I’d need an actual document from List C of the Form I-9, since she also let me know that she does not own a passport.
Today was Day 2 for her, and she still tells me she does not have her social security card. I let her know that by law I am supposed to complete her I-9 within the first 3 days and asked her to bring an acceptable document from List C for tomorrow.
My question is–what do I do if she shows up to work without an acceptable document from list C again tomorrow?
A: If she is unable to present an actual social security card due to it being lost, one other option is to present a receipt for getting a replacement. So, she should go to the local Social Security office, request a new card, and then present you with the receipt that they can give her. This would be valid for up to 90-days. If she does this, then she can continue working and would need to present the replacement card within the next 90-days.
If she otherwise cannot present another document from List C or a receipt for a replacement card by the end of the 3rd business day of her working, then she should be placed on an unpaid leave of absence pending the presentation of these documents, or end her employment altogether. It is not legal to keep someone working if they are unable to complete the Form I-9.
