Recent years have seen the sick leave verification programs of public safety employees increasingly under attack. Most usually, employees file lawsuits contending that an employer’s verification program violates their privacy rights under either the Americans With Disabilities Act or a general constitutional right to privacy.

The sick leave verification policy for the Columbus, Ohio Police Department ran into tough sledding in federal court this summer. Under the policy, an employee who returns to regular duty must, under specified circumstances, provide a note from his or her attending physician to his or her immediate supervisor. The physician’s note must state the nature of the illness and that the employee is capable of returning to duty if the employee was off for more than three days of sick leave or was previously notified by a commander to obtain a physician’s note. If more than two days of sick leave were used due to illness in the immediate family, then the physician’s note must state the nature of the family member’s illness and that the employee was required to care for the family member.

The Court found that the Department’s rule was not justified by the “business necessity” required by the Americans With Disabilities Act and the Rehabilitation Act before an employer may make inquiries as to an employee’s medical condition. The City argued that its rules were necessary to curb sick leave abuse. However, the Court found that the City “presented no evidence as to the cost of sick leave usage nor as to the facts of any alleged abuse. Indeed, as the employees correctly note, the type of evidence necessary is not available because the City has never undertaken to analyze the incidence of malingering and sick leave abuse among its employees. Moreover, the City has not addressed the evidence from supervisors that the Department does not use an employee’s diagnosis contained in return-to-work doctor’s notes as a vehicle for weeding out abusers. Instead, the Department requires the employee, upon reasonable suspicion, to submit to a medical examination.”

The Department also argued that its sick leave policies were necessary for public safety, contending that its “employees are required to handle emergencies on a daily basis, including responding to life and death situations. Employees must be able to exercise good judgment and sound discretion in inherently stressful situations. Police officers are armed and may be called on to make split second decisions whether or not to use deadly force.”

The Court was unconvinced, finding that the Department failed “to present any evidence of how a general medical diagnosis provided to a medically untrained supervisor genuinely serves that asserted business necessity or is a reasonably effective method of achieving the Department’s stated goal. The Department also fails to even try to explain how the request for medical information is no broader and no more intrusive than necessary to serve that asserted business necessity. Indeed, the Court finds that it is simply not possible to show that the directive’s requirement to submit a medical diagnosis is no broader and no more intrusive than is necessary to show fitness for duty. All that is necessary to allow an employee to safely return to his or her job is a doctor’s note indicating that the employee is fit for duty.”

Finally, the City also argued that its policies helped the City to determine if an absence was FMLA-qualified, and permitted the City to initiate the process of accommodating an employee’s potential disability. The Court accepted neither argument, finding that the FMLA contention “is belied by the fact that if an employee seeks to have leave designated FMLA, the supervisor has nothing to do with the decision. With regard to the accommodation of disabilities, supervisors have nothing to do with the accommodations process. Thus, even though accommodating disabilities may in some circumstances be seen as vital to the administration of a business, there is absolutely no evidence that the Department’s policy serves the stated purpose.”

The Court entered summary judgment on behalf of the employees and issued an injunction ordering the City to stop enforcing its sick leave policies.

Lee v. City of Columbus, 2009 WL 2145929 (S.D. Ohio 2009).

This article appears in the November 2009 issue