Court Says Doctor's Note Requirement Doesn't Violate Disability Law

When an employee returns from sick leave, it is not unusual for employers to require a doctor's note to verify that the individual was ill and that he or she is well enough to execute regular duties. But in December 2007, a group of employees challenged this custom in a class action lawsuit, claiming their employer--the city of Columbus, Ohio--was violating their privacy and federal anti-discrimination laws by requiring such notes.

The case was brought under the Rehabilitation Act. Because the provision in question is similar to the Americans with Disabilities Act (ADA), a district court analyzed the issue under the ADA and found the city's directive to be overly intrusive and ruled in favor of the plaintiffs in 2009. The court also granted a permanent injunction prohibiting the city from enforcing the rule.

But on Feb. 23, the 6th Circuit reversed the decision and lifted the injunction, saying the city of Columbus did not violate federal disability laws by requiring its employees to provide their immediate supervisors with doctors' notes upon returning from sick leave.

Although Lee v. City of Columbus concerns city workers, experts say the decision is valuable to corporate counsel.

"This decision broadens the rights of employers in saying that a doctor's note or statement regarding the nature of the illness is not something that is likely to elicit information regarding a disability," says Tal Marnin, counsel at White & Case.

General Diagnosis

The Lee plaintiffs alleged that Columbus' doctor's note directive violated the Rehabilitation Act of 1973, which applies to employers that receive federal funding and prohibits discrimination based on a qualified individual's disability. The employees argued that submitting doctor's notes to supervisors could lead to the dissemination of confidential medical information that might result in workplace discrimination.

The district court found that the Rehabilitation Act incorporates certain discrimination protections featured in the ADA, including a provision prohibiting employers from inquiring about an employee's disability unless there is a clear business necessity to do so. Although the defendants asserted that their policy was necessary for business reasons and only requiring minimal information to be divulged, the court found that Columbus' directive violated the ADA provision.

To bolster its finding, the court cited Conroy v. New York State Dep't of Correctional Services, a 2003 case in which the 2nd Circuit found that a policy requiring even "a general diagnosis is sufficient to trigger the protections of the ADA." In that case, the 2nd Circuit said the policy in question did not possess a clear business necessity.

The 6th Circuit acknowledged in Lee that the Rehabilitation Act incorporates certain features of the ADA, but it found that the city's policy didn't trigger the ADA protections because it only required employees to disclose general information for the limited purpose of making sure an employee had a legitimate illness and was fit for duty upon his or her return. The court found that the city's rule did not intend to reveal individuals' disabilities, and furthermore, the plaintiffs had not proved that they were discriminated against solely on the basis of disability, which is a key requirement in bringing a claim under the Rehabilitation Act.

Joseph Lynett, a partner at Jackson Lewis, says Lee exposes the different outlooks of the 2nd and 6th Circuits when it comes to medical disclosure. "Lee and Conroy stand not in contradiction to each other but represent different ends of the spectrum," he says. "In between these two standards, there is very little case law, and that creates uncertainty for employers trying to determine whether a medical inquiry is appropriate."

Employer Implications

In light of Lee, employers with doctor's note directives should review their policies.

Experts suggest that in-house counsel ask two key questions in examining their policies: Why does the organization require a doctor's note from a returning employee, and is it a job-related or business necessity to know why an employee needed to use sick leave?

A doctor's note is likely to be considered a job-related business necessity if an employer needs to confirm, per ADA rules, whether a returning employee is able to perform the essential functions of his or her job with or without reasonable accommodation, or whether an employee in his or her current state of health poses a direct threat to himself, herself or others. By asking and answering these types of questions, the employer is in a better position to show the business necessity of any health inquiry.

Employers can also attempt to control the type of information they are likely to receive. Experts say employers with doctor's note directives can provide employees with forms or guidelines to ensure that notes simply confirm employees' illnesses and prevent any sensitive information from being shared. These types of simple risk-avoidance strategies can spare employers from future problems.

Contributing Author

Joanne Sammer

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