What would the holidays be without a visit from the EEOC!
Its latest visit was to Dillard’s – to stop by to pick up a $2 million settlement check this week in connection with an ADA class action filed in California back in 2008.
The suit had two grounds, per the EEOC. One was the common EEOC landmine we have seen other large companies like Verizon and SuperValu stumble into – terminating employees automatically once they have exhausted a set period of leave without considering whether additional leave could be necessary for disabled employees as a “reasonable accommodation” under the ADA.
The second ground is the reason for today’s “holiday alert.” Dillard’s managers and supervisors were requiring employees to provide information concerning “what was wrong with them”/the specific nature and extent of their alleged illness or injury every time they requested company sick leave – rather than just accepting a doctor’s note saying “Mary needs to be off work until. . . .”
We are bringing this practice to your attention for two reasons. One, so you don’t engage in it regarding every little illness or injury for which an employee seeks time off. But, two, just as importantly, that you don’t assume from this settlement that employers are not allowed to request specific medical information under any circumstances.
The EEOC’s “problem” with Dillard’s practice of requesting detailed medical information in addition to a doctor’s note taking the employee at issue off work was that there was no business reason for such requests. Specifically, a doctor’s note saying “Mary can’t work” was sufficient for Mary to get the sick leave the company provided for its employees.
This does NOT mean, however, that the EEOC is going to be knocking on your door ANYTIME you ask for additional medical information beyond just a doctor’s note when employees are seeking accommodations BEYOND your normal sick leave or other policies. For instance, if Joseph has been late 15 times in the last month and is telling you the reason is “medical,” he would not be able to “just bring you a doctor’s note” saying “Joseph is going to need to be late for work whenever he feels like it” and you have to let him come and go as he pleases forever based on this note. The same goes for a shepherd or wise man who refuses to complete FMLA paperwork or who is requesting time off and does not qualify for FMLA or any type of company-provided leave.
Employers are still entitled to receive sufficient medical information so as to know whether an employee qualifies for the “special treatment” under the ADA, FMLA, etc. that they are requesting (or for which they otherwise would have to qualify in order not to be disciplined or fired under your normal attendance and other policies).
One final note on this topic is that, particularly in California (where you will notice the EEOC “just happened” to file the class action against Dillard’s) and other states which have their own privacy laws, requiring any employee to provide you with “a diagnosis” is not a legitimate request – and in those states is even unlawful. But again, asking the employee’s doctor to provide you with information concerning the duration and effects of the illness or injury and in particular its effects on his/her work can easily be done without asking them to include a diagnosis.
Make sure for good measure you include the new GINA disclosure whenever asking for such information as well. For a copy of this if you don’t have it, please contact us.