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Top Tips – Sick Days – Part II

Communicating with Employees:

  • When an employee calls in sick, the employer cannot require the employee to disclose the specific nature of his or her medical condition in order to qualify for sick leave pursuant to the Americans with Disabilities Act (“ADA”).  However, if the employer has a written policy that requires the employee to provide a doctor’s note, the employer can require a generic doctor’s note without violating the ADA.  
  • The Health Insurance Portability and Accountability Act (“HIPAA”) prevents disclosure of health information without an individual’s authorization.  While there are exceptions that apply in specific circumstances, generally an employer cannot disclose health information about its employees without specific authorization.  Therefore, be very careful not to disclose the details about an employee’s health to other employee’s within the company without the sick employee’s authorization.
  • Do not forget about the Family and Medical Leave Act (“FMLA”).  Depending on the size of the employer’s company and the employee’s illness, the employee may be eligible for FMLA leave. In order to determine if the employee is eligible for FMLA, the employer can ask the employee for specific information related to the employee’s health condition, including requiring a doctor’s note certifying information relating to the employee’s health condition.