Executive Summary: In a public webinar recently hosted by the California Department of Industrial Relations regarding California's new paid sick leave law, the state labor agency commented that requiring employees to submit documentation as a condition for payment of sick leave arguably can interfere with the employee's use of paid sick leave. While the agency's response was for informational purposes only and, thus, not legally binding, employers in California are advised to exercise caution when implementing the state's new paid sick leave law.

The use of doctors' notes and other medical certifications in the leave of absence context has been a long-accepted practice among employers. This requirement afforded companies not only the ability to properly document an employee's leave of absence and comply with various federal and state laws, but also enabled them to verify that the employee was exercising the right for a valid purpose. After all, when it comes to job-protected leave—as well as any benefits that could be paid by a company for the leave—it made sense for any laws affording such broad employee protections to also give companies the right to check against suspected employee abuse.

Needless to say, it came as a surprise to most employers in California when the state legislature passed a law late last year providing mandatory paid sick leave to approximately 6.5 million workers without any provision for allowing employers to seek documentation verifying an employee's use of paid sick leave under the law. The lack of any provision for documentation was even more surprising because prior paid sick leave laws enacted in other U.S. jurisdictions had included some standards for employers to seek documentation whenever they suspected an employee of using sick leave for an improper purpose.

Presumably, the absence of any express standards could be interpreted to mean that the law did not set any restrictions for employers to utilize doctors' notes to verify an employee's use of paid sick leave. Indeed, a common maxim of statutory construction—derived from the Latin phrase expressio unius est exclusio alterius—is that when a statute describes certain requirements, but not others, it is assumed that the requirements not mentioned are not covered by the statute.

Despite this, in a public webinar hosted by the California Department of Industrial Relations on April 8, 2015, regarding California's paid sick leave law, the state labor agency took the position that the new law could prevent employers from conditioning the use of paid sick leave on the submission of documentation verifying the leave because such a requirement arguably interferes with the employee's use of paid sick leave. As part of its rationale, the agency cited to the law's anti-retaliation/discrimination provision, which expressly prohibits employers from denying an employee the right to use accrued sick days and from, among other things, preventing an employee from attempting to exercise this right.  

It must be noted that the Department of Industrial Relations' response is not legally binding and was provided for informational purposes only. Likewise, its response did not go so far as to outright prohibit employers from requiring doctors' notes. Nevertheless, in light of the state agency's recent comments, employers should exercise caution whenever an employee has requested the use of paid sick leave under the state's new law.