Addressing health-related issues in the workplace can be a sensitive and confusing process for employers. Typical employer-related questions include, but are not limited to, the following:
1. If an employee calls in sick, am I allowed to ask what’s wrong?
2. If an employee is out for three or more days, should he or she bring a doctor’s release when he or she is ready to return to work?
3. I suspect an employee is on medication that is affecting his or her ability to do his or her job. May I ask what’s wrong and if he or she is on medication?
4. I know one of my employees is going through a difficult time in his personal life. He told me all about it. I suspect the employee is suffering from depression because his performance has declined. May I tell the employee to seek professional help for his depression?
5. One of my employees has been out on a leave of absence. Her doctor has released her to return to work tomorrow. I don’t think she is ready to do her job; after all, stress is what triggered her medical condition. May I tell her that she is setting herself up for failure and to take a few more weeks off?
6. We are a small employer with 16 employees. I have an employee that has requested to leave at 3 p.m. to receive chemotherapy treatment two times a week for the next two months. Am I required to approve this time off request? If so, am I required to pay the employee?
With the exception of a few minor details, it’s likely you have had to address one of the six examples outlined above. If these issues are not handled properly, you could be creating liability for the company. Additionally, you could be denying your employee of certain rights under various federal and/or state laws.
If you’re not certain what is required of an employer in the above scenarios, you’re not alone. How you handle these issues depends on what’s required by law, the size of your company, past practices and your company policies.
Here, we’ll look at general guidelines regarding the above examples. However, it’s imperative that you work with an employment attorney or HR professional for more guidance.
The following are some best practices for the common questions outlined above:
You may ask an employee why he or she is not reporting to work that day. If it’s the cold or flu, etc., you should briefly document “on 8/14/12, I spoke with John. He called in sick today. He has the flu.” Beyond John’s initial response, though, it is not acceptable to pry into details about any illness or injury given as the reason for the absence.
It’s a good practice to require employees to provide a doctor’s release if they miss three consecutive days of work or more. If you require a release, make sure you are consistent and include this requirement in your Employee Handbook and/or a separate absenteeism policy.
Don’t play doctor. This type of question may raise concern under the Americans with Disabilities Act of 1990 (ADA). The ADA applies to employers with 15 or more employees. Instead, focus on the performance issue(s). If the employee informs you that he or she is on a medication which is affecting his or her ability to do the job, work with your attorney and HR department on determining which federal and state laws are applicable.
This is similar to the best practice guidance given in response to question number three. Focus on performance. If the employee informs you he has a lot of personal issues going on, provide him with resources, if possible. For example, an Employee Assistance Program (EAP) may be available.
Again, don’t play doctor. You need to defer to the doctor’s assessment and recommendation. If the employee returns to work and there are performance issues, address the performance issues. If the employee informs you his or her medical condition is affecting that individual’s ability to do his or her job, then you should discuss possible job-related modifications with your attorney and HR department.
ADA applies to employers with 15 or more employees. This type of situation would most likely be considered a reasonable accommodation. In regards to paying the employee, the answer is going to depend on if the employee is exempt or non-exempt. If exempt, yes, provided he performed work that day—to do otherwise would potentially violate the Fair Labor Standards Act (FLSA), thereby compromising the exempt status of the employee. If non-exempt, no; you are only required to pay for hours worked.
As mentioned above, these are just general best practices. It’s important to work with your employment attorney and your HR professionals to determine what the correct answer would be to your employee-specific health issues.
Anna Brewer has over 32 years of human resources experience, with extensive generalist knowledge in HR, employer relations and compliance. Under Anna’s leadership, the HR Administrative Compliance team assists Insperity clients with highly sensitive, complex and potentially costly matters such as: background services, compliance posters, unemployment claims, worksite employment verifications, drug testing services, FLSA review, wage claim and DOL audit assistance.