Can an Employer Require a Doctor’s Note for One Sick Day?

The Family and Medical Leave Act (FMLA) of 1993 allows eligible employees to take up to 12 weeks of unpaid leave for certain family and medical reasons, including their own serious health condition. This law affects approximately 50% of the US workforce, covering employers with 50 or more employees.

The effective date of the FMLA is February 5, 1994, with a threshold of 1,250 hours of service in the 12 months preceding the start of leave.

Legal Standard for Sick Leave

The FMLA sets a national standard for family and medical leave, including sick leave, with a minimum requirement of 12 weeks of unpaid leave. Under 29 CFR 825.205, employees may take leave for their own serious health condition, which is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment. The law applies to employers with 50 or more employees within a 75-mile radius.

In practice, this means that employees are entitled to take time off for doctor’s appointments, hospital stays, and other medical treatments, with a minimum of 30 days’ notice for foreseeable leave. The statute requires that employees provide a 30-day notice for foreseeable leave, but only 1-2 days’ notice for unforeseeable leave, under 29 USC 2612(e)(1).

The FMLA also sets a 12-month period for calculating the 1,250 hours of service required for eligibility, with a maximum of 12 weeks of leave in a 12-month period, under 29 USC 2611(2)(A).

When the Answer is YES

Employers can require a doctor’s note for one sick day if the employee is taking leave under the FMLA, but only if the employer has a uniformly applied policy, under 29 CFR 825.305. The policy must require all employees to provide a doctor’s note for all absences, regardless of the reason. For example, an employer may require a doctor’s note for all absences exceeding 3 days, with a $20 fee for the doctor’s note.

In plain terms, this means that employers can require a doctor’s note, but only if they have a consistent policy that applies to all employees, and the policy must be in writing, under 29 USC 2618(a). The employer must also provide the employee with 15 days to provide the doctor’s note, under 29 CFR 825.308.

When the Answer is NO

Employers cannot require a doctor’s note for one sick day if the employee is taking leave under the Americans with Disabilities Act (ADA), which has a more stringent standard for requiring medical documentation, under 42 USC 12112. The ADA requires that employers only request medical documentation that is “job-related and consistent with business necessity,” with a maximum of $100 fee for the medical documentation.

This is where the law gets teeth, as employers who violate the ADA can face fines of up to $55,000 for the first violation, and up to $110,000 for subsequent violations, under 42 USC 12117(a). The statute also sets a 180-day statute of limitations for filing a complaint, under 42 USC 12117(b).

The Process

To require a doctor’s note, employers must follow a specific process, including providing the employee with a written request for the doctor’s note, under 29 CFR 825.306. The request must include the specific information needed to determine the employee’s eligibility for leave, with a minimum of 10 days to provide the doctor’s note. The employer must also provide the employee with a copy of the FMLA regulations, under 29 USC 2619(a).

The employer must also provide the employee with a reasonable amount of time to provide the doctor’s note, typically 15 days, under 29 CFR 825.308. The statute requires that employers keep confidential all medical documentation, with a maximum of 3 years to retain the documentation, under 29 CFR 825.500.

In practice, this means that employers must have a clear policy and procedure for requesting doctor’s notes, and must provide employees with adequate notice and time to comply, with a minimum of 30 days’ notice for foreseeable leave, under 29 USC 2612(e)(1).

State-by-State Variation

Some states, such as California, New York, and Massachusetts, have their own family and medical leave laws, which may provide greater protections for employees than the FMLA, with a minimum of 12 weeks of paid leave. For example, California’s Paid Family Leave (PFL) law provides up to 8 weeks of paid leave for certain family and medical reasons, with a maximum of $1,300 per week.

Other states, such as Texas and Florida, have more limited laws, with a maximum of 3 days of paid sick leave. The laws in these states may have different requirements for doctor’s notes, with a minimum of 1 day’s notice for unforeseeable leave, under Texas Labor Code 21.054.

Special Situations or Exceptions

Military Leave

The FMLA also provides special protections for employees taking leave for military-related reasons, including the requirement that employers provide up to 26 weeks of leave for employees caring for a covered servicemember, under 29 USC 2612(a)(1)(E). The statute requires that employers provide a minimum of 15 days’ notice for foreseeable leave, under 29 USC 2612(e)(1).

In practice, this means that employers must have a clear policy and procedure for handling military-related leave, and must provide employees with adequate notice and time to comply, with a maximum of $50 fee for the doctor’s note.

Small Employers

Small employers, those with fewer than 50 employees, are not required to provide FMLA leave, but may still be subject to state and local laws, with a minimum of 5 days of paid sick leave. For example, the city of Seattle requires employers with 5 or more employees to provide a minimum of 5 days of paid sick leave, with a maximum of $200 fine for non-compliance.

This is where the law gets complex, as small employers must navigate a patchwork of federal, state, and local laws, with a maximum of 30 days to comply with the law, under Seattle Municipal Code 14.16.

Enforcement and Consequences

The US Department of Labor (DOL) is responsible for enforcing the FMLA, and may impose fines and penalties on employers who violate the law, with a maximum of $10,000 fine for willful violations, under 29 USC 2617(a). The statute requires that employers keep accurate records of employee leave, with a maximum of 3 years to retain the records, under 29 CFR 825.500.

In recent years, the DOL has increased its enforcement efforts, with a focus on ensuring that employers provide adequate notice and time for employees to comply with the law, with a minimum of 15 days’ notice for foreseeable leave, under 29 USC 2612(e)(1). The statute requires that employers provide a minimum of 30 days’ notice for unforeseeable leave, under 29 USC 2612(e)(1).

The court has recently clarified the requirements for employer-provided leave, with a minimum of 12 weeks of unpaid leave, under 29 USC 2611(2)(A). The statute requires that employers provide a minimum of 15 days’ notice for foreseeable leave, under 29 USC 2612(e)(1). As of 2022, the DOL has reported an increase in complaints and enforcement actions related to the FMLA, with a maximum of $50,000 fine for willful violations, under 29 USC 2617(a).