New Appeals Court Decision Sets Up Conflict In Law Applicable To Sick Leave Verification

The Americans With Disabilities Act (ADA) has a fairly broad medical privacy provision. The ADA states that an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Most courts interpreting the ADA have found that an employer is not free to make routine medical inquiries of employees, and have held illegal “doctor’s note” requirements as a condition for sick leave use unless there was some overriding operational need for the note or the employee was suspected of abusing sick leave.

In particular, the federal Second Circuit Court of Appeals, which covers New York and nearby states, found in Conroy v. New York State Dep’t of Correctional Services, 333 F.3d 88 (2d Cir. 2003), that even routine requests for “general diagnoses” violated the ADA. The Conroy Court held that “requiring a general diagnosis is sufficient to trigger the protections of the ADA. We believe that since general diagnoses may expose individuals with disabilities to employer stereotypes, the Policy implicates the concerns expressed in these provisions of the ADA.”

In February 2011, the Sixth Circuit Court of Appeals, which covers Ohio and neighboring areas, set up a major conflict of law in the area by rejecting Conroy and upholding the City of Columbus, Ohio’s “doctor’s note” requirement. The Court ruled that “we do not find the requirement that an employee provide a general diagnosis – or in this case, an even less specific statement regarding the nature of an employee’s illness – to be tantamount to an inquiry as to whether such employee is an individual with a disability or as to the nature or severity of the disability under the ADA. By painting with such a broad brush, and finding suspect any routine or general inquiry simply because it may tend to reveal an employee’s disability, the Conroy Court has unnecessarily swept within the statute’s prohibition numerous legitimate and innocuous inquiries that are not aimed at identifying a disability. Obviously, asking an employee whether he is taking prescription drugs or medication, or questions seeking information about illnesses, mental conditions, or other impairments an employee has or had in the past, triggers the ADA’s (and hence the Rehabilitation Act’s) protections. Asking an employee returning to work to describe the nature of his illness, however, is not necessarily a question about whether the employee is disabled.

“Here, the generalized and uniform inquiry mandated by the City’s Directive – requiring that employees returning from more than three days of sick leave submit a note to their immediate supervisor from their doctor stating the nature of the illness – is not ipso facto a prohibited inquiry as to whether an employee is an individual with a disability, as disability is defined by the ADA. There is no evidence that this inquiry is intended to reveal or necessitates revealing a disability. Thus, we conclude that the Directive does not trigger the protections of the ADA.”

The Sixth Circuit also found important the fact that the City’s rule applied to all employees, not just those with disabilities. Citing a document entitled “Enforcement Guidance” issued by the EEOC, the Court held that “an employer’s request for employees to supply information justifying the use of sick leave is not an improper medical inquiry under the Rehabilitation Act or the ADA. In the present case, the City’s Directive is a universal sick-leave policy applicable across the board to all Division employees, disabled or not, who use contractual sick leave for a personal illness of more than three days or a family illness of more than two days, as well as those employees who are on a sick-leave verification list. It constitutes a valid and acceptable inquiry under the ADA.”

Lee v. City of Columbus, Ohio, 2011 WL 611904 (6th Cir. 2011).