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When is a doctor's note required?

Q: How many days can you be absent from work before your employer can request a doctor’s note?

A: Your employer has some discretion with developing their own internal policy on when they can request a doctor’s note to explain an employee’s absence. At this time, there is no federal or state law that details a specific number of days that an employee can be absent from work before an employer may lawfully request a doctor’s note.

According to Attorney Jeffrey A. Dretler, Partner of the Employment Law Group of Prince Lobel Glovsky & Tye LLP, there are “federal and state laws which provide guidance on the circumstances and manner in which an employer may request medical documentation from an employee.”

If an employee is requesting a leave of absence under the federal Family and Medical Leave Act (FMLA) due to her own or a family member’s serious health condition, a medical certification from the employee’s health care provider may be required by the employer (regardless of the anticipated length of the leave). Dretler also adds:

Recent amendments to the FMLA regulations (effective January 2009) limit the scope of the request to the information required on the health care certification form; provide that any direct contact between the employer and the employee’s health care provider be made by a human resources or other administrative person and not the employee’s direct supervisor; and limit the frequency with which an employer may request updated information. An employee seeking a leave of absence, modified job duties or other ‘reasonable accommodation’ under Massachusetts or federal handicap discrimination laws (Chapter 151B or the Americans with Disabilities Act) may also be required to submit medical documentation which substantiates the need for the accommodation. Further, employees may be required to submit medical documentation to obtain clearance to return to work after a leave of absence of any length (i.e., fitness for duty exams or documentation).

An employee using sick time from a PTO bank or from their sick time accrued, may still be subject to the employer’s own policies and procedures regarding the need for a doctor’s note. An employer should limit its request to only that information reasonably necessary to address the situation at hand. Employers should also be careful to request these notes on a uniform basis. Employers need to ensure that they are applying the policy in a non-discriminatory way (e.g., asking women for doctor’s note consistently but only requiring a doctor’s notes from men on occasion.)

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