Is there a hidden time bomb in your attendance policy?

Loads of companies have long-standing policies that require employees to submit a doctor’s note explaining the medical condition that caused them to miss several consecutive work days. Now a judge says that’s a violation of the Americans With Disabilities Act.

The ruling, out of a federal district court in California, is definitely a blow for employers trying to get a handle on absenteeism and sick leave abuse.

A quick look at the case:

Corina Scott, who worked at the El Centro, CA branch of Dillard’s, a department store chain, missed several days of work due to illness. To excuse the absence, she got a note from her doctor.

The problem: The note didn’t specify what medical issue prevented her from coming to work. And Dillard’s attendance policy stated that an employee’s health-related absence would not be excused unless the worker submitted a doctor’s note outlining “the nature of the absence (such as migraine, high blood pressure, etc. … ).”

The policy further emphasized that the note “must state the condition being treated.”

Store management wouldn’t accept Scott’s note, saying it wasn’t specific enough concerning her illness. But Scott refused to provide further information.

Dillard’s fired her for her “unexcused absence.”

Was asking for specifics a ‘business necessity’?

Scott filed an ADA bias complaint with the EEOC, which took the matter to court.

In court, Dillard argued that its policy was job-related and “consistent with business necessity.”

But the judge disagreed, saying that the policy “permitted supervisors to conduct impermissible disability-related inquiries” into the reasons for workers taking sick leave.

Dillard’s policy, the judge wrote, “invites intrusive questioning into the employee’s medical condition, and tends to elicit information regarding an actual or perceived disability.”

The court denied Dillard’s motion to dismiss and sent the case to trial. And we all know what that means — either an expensive court session or an expensive settlement.

How should employers respond?

So what’s the take-away here? First, it’s a strong reminder of how aggressive the EEOC has become in its approach to enforcing the ADA.

Second, it’s a good example of how some long-standing policies might no longer comply with today’s interpretation of workplace laws.

What sort of sick day policy should employers adopt now? The answer may be found in the judge’s ruling: “Dillard’s could have required its employees to submit a doctor’s note specifying the date on which the employee was seen, stating that the absence was medically necessary, and stating the date on which (the) employee would be able to return to work.”

Cite: EEOC v. Dillard’s, Inc. To read the full decision, go here.








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