In California, there are several laws that regulate the requirement that you provide a doctor’s note before taking sick time. These laws limit what your employer can make you disclose. They also protect you from retaliation for using your workplace rights. However, there are still many unresolved issues concerning when your employer can require one.
Can California employers require a doctor’s note if I take sick leave?
Probably not. However, California employment law is unsettled on this issue. As a result, some employers continue to require one.
In California, employers are not allowed to deny you the right to use your accrued sick days. They also cannot retaliate against you for trying to exercise your right to use your sick days.1 Instead, employers must let you use your accrued paid sick time upon oral or written request in order to:
- diagnose, care, or seek treatment of an existing health condition suffered by the employee or the employee’s family member, like a grandparent, or domestic partner,
- seek preventative care for the employee or family member, or
- seek help after domestic violence, sexual assault, or stalking.2
However, California law also does not forbid employers from demanding a doctor’s note before issuing sick time. Such a requirement is generally seen as a common practice.
Employers are also not obligated to determine the purposes for your request for sick leave.3
Nevertheless, the Labor Commissioner’s Office at the California Department of Industrial Relations (DIR), which is also known as the Division of Labor Standards Enforcement (DLSE), has opined that requiring a doctor’s note is unlawful. In a webinar about California’s new sick pay law, the Healthy Workplaces, Healthy Families Act of 2014, the DIR stated that requiring a doctor’s note might interfere with the worker’s right to take their accrued sick time.4
The DIR’s statement was not unequivocal, however. It did not say that demanding a doctor’s note would interfere with your right. Only that it might. Additionally, the DIR’s guidance in the webinar was for informative purposes, only. The DIR does not have the authority to interpret the law with finality. Only the courts do. However, the DIR’s interpretation of the law in order to enforce it does carry weight.
According to the DIR, denying paid sick leave for a lack of a doctor’s note can lead to a wage and order lawsuit or a retaliation claim.
Some employers continue to demand doctor’s notes in order to prevent the abuse of sick leave. Other employers have stopped demanding the notes in order to avoid a lawsuit.
What about leave under the Family and Medical Leave Act?
If you request leave under the federal Family and Medical Leave Act (FMLA), you must provide enough information to suggest that it would be covered by the law. Your employer may request more information if it is unclear. While they cannot require a doctor’s note, they can request a certification from the healthcare provider that treated you or your family member. They may also seek out a second opinion.
The FMLA provides up to 12 weeks of unpaid, but job-protected leave per 12-month period to:
- treat a serious health condition and recover from it,
- care for an immediate family member who is suffering from a serious medical condition,
- bond with a new baby, or an adopted child or foster child, and/or
- deal with a qualifying emergency related to the military.5
Employers can require that a request for FMLA leave be accompanied by the healthcare provider’s certification.6 Such a certification must include at least:
- the date that the serious health condition started,
- how long it will likely last,
- appropriate medical facts concerning the condition, and
- when treatment is to be given and for how long, if treatment sessions will interfere with work.7
If your employer demands such a certification, you must provide one.8
If you provide a sufficient certification, though, your employer cannot request additional information from the healthcare provider.9 They can, however, request a second opinion from another provider at its own expense.10
Generally, your employer can require recertification not more than once every 30 days.11 If the original certification contemplated a duration of leave that was longer than 30 days, your employer cannot demand a recertification until that time or 6 months have passed.12
The recertification process is the only way to track your medical condition under the FMLA, though. Employers are not allowed to require you to provide a doctor’s note to prove your condition.13
Can they ask for one after I request a disability accommodation?
Yes. If you request a reasonable accommodation because of your disability, your employer can demand a doctor’s letter. This letter is used to help your employer to make accommodations that help you work without being an undue hardship on your employer.
The letter generally includes information concerning:
- the issuing doctor’s credentials,
- how long the doctor has been treating the patient,
- what the diagnosis is,
- how this condition will impair the employee’s work, and
- recommendations that can be taken to help the employee continue to perform their job duties.
Under the federal Americans with Disabilities Act (ADA), employers can have a policy of mandating these doctor’s notes. They can terminate employees who do not comply with that policy by refusing to provide a note to substantiate a demand for accommodations.14
However, this policy of requiring doctor’s notes must apply to everyone. If it only applies to certain workers or alleged conditions, it can amount to discrimination.
What about my privacy rights under HIPAA?
The Health Insurance Portability and Accountability Act (HIPAA) limits what your healthcare provider can disclose to your employer without your consent. However, its limitations do not prohibit a demand for a doctor’s note if it is needed for:
- sick leave,
- workers’ compensation,
- wellness programs, or
- health insurance.15
If your employer requests more information than this, your healthcare provider can only supply it with your consent.
Can I get fired for not providing one?
If you are not required to provide one, then your employer cannot retaliate against you for not giving them a doctor’s note. If you are fired for not providing a doctor’s note, it can amount to wrongful termination.
However, if your employer can legally require a doctor’s note and you refuse, you can be terminated. This is the case with the ADA, which allows employers to require a doctor’s note regarding your disability.
If you think that your employer has violated your employee rights regarding your sick leave, you should seek legal advice.
Have recent changes to California’s employment law affected this?
Yes, California’s paid sick leave law was recently changed.
Assembly Bill 1522, also known as the Healthy Workplaces, Healthy Families Act of 2014, is the new state law that guarantees workers in the state paid time off (PTO) for sick leave. This includes full-time and part-time employees. The new law went into effect on July 1, 2015.
Eligible employees are now entitled to an hour of sick leave for every 30 hours they work. Employees are eligible if they work for 30 or more days within a year with their employer. They can take paid sick days they have accrued starting on the 90th day of their employment. Sick leave is paid at a non-exempt employee’s regular rate of pay.
If local ordinances require better sick leave benefits, you are entitled to those more generous benefits. In San Diego, for example, the accrual of paid sick leave begins on your first day of work.16 Other jurisdictions that require more generous sick leave policies are:
- Los Angeles,
- San Francisco,
- Santa Monica,
- Emeryville, and
Sick leave can be taken for “prescribed purposes,” like to get medical care. The Act, however, does not say how employers can determine whether a request for sick leave is related to a prescribed purpose. This is why demanding a doctor’s note for sick leave is such a contentious issue.
- California Labor Code section 246.5(c).
- California Labor Code 247.5(b).
- California Department of Industrial Relations, “Healthy Workplace, Healthy Families Act of 2014 – Paid Sick Leave” (April 8, 2015).
- 29 USC 2612(a)(1).
- 29 USC 2613(a).
- 29 USC 2613(b).
- 29 CFR 825.305(c).
- 29 CFR 825.307(a)
- 29 USC 2613(c)(1).
- 29 CFR 825.308(a).
- 29 CFR 825.308(b).
- Oak Harbor Freight Lines, Inc. v. Antti, 998 F.Supp.2d 968 (D. Or. 2014).
- Gogos v. AMS Mechanical System, Inc., No. 15-3603 (7th Cir. 2017).
- 45 CFR 164.512(b)(1)(v).
- City of San Diego – Compliance Department.