Question: An employee has missed work several times to attend doctor’s appointments and has discussed certain health issues. At what point can we require a doctor’s note to continue to work?
Answer: It depends on the type of leave the employee is using, e.g., Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) leave. Other factors include the health issues, written policies (if any) on seeking documentation in the employee handbook and application of the same, and whether the doctor’s note is intended to substantiate the absences or clear the return to work. Additionally, some laws relevant to your authority to seek documentation apply only to certain employers (e.g., with 16+ or 50+ employees) and/or certain employees (e.g., those who have been employed for at least 12 months).
If the employee is simply missing work (no approved leave) and you have an adequate attendance policy, then you can ask for a doctor’s note to cover the absences. If she is on FMLA or ADA leave, you should be cautious about seeking a doctor’s note that clears her to work.
You may seek documentation for absences taken under the FMLA or the ADA, but be sure to comply with their specific requirements. Under the ADA, for example, you may require documentation for disability-related absences (unless the disability or reason for the leave is apparent) but can’t do so or inquire about the condition for the person to be cleared to work unless you have a reasonable belief her present ability to perform essential job functions will be impaired by a medical condition or pose a direct threat.
Also, you may generally require reasonable documentation that paid sick leave is for a qualifying purpose if the leave requested or taken is for more than four consecutive days on which the employee would have worked, not four consecutive calendar days.
You may not require an employee to provide documentation that leave is for a qualifying reason related to a public health emergency (e.g., COVID-19) under Colorado’s Healthy Families and Workplace Act. Reasonable documentation is defined as no more than is needed to show there’s a qualifying reason for the leave. An employer can’t require the disclosure of details about an employee’s or family member’s health condition.