Can I require a doctor’s note after an employee has been out sick for three consecutive days?
The answer to this question depends on whether the employee is using paid sick leave when they are out.
California’s mandatory paid sick leave (PSL) law, the Healthy Workplaces, Healthy Families Act, requires employers to provide sick leave to employees for use when they (or a qualifying family member) are sick or need medical care.
PSL is a form of protected time off, meaning employees have a legal right to use the time and they cannot be disciplined, terminated or otherwise subjected to adverse action because of doing so.
Employees must be allowed to use PSL upon their request. The PSL law does require that employees provide reasonable advance notice if their need to use PSL is foreseeable; but if the need is not foreseeable (such as in an emergency), they only must provide notice as soon as practicable.
There is no provision in the PSL law that allows an employer to require medical certification or a doctor’s note when an employee requests or uses PSL, regardless of the number of days of PSL the employee uses.
Labor Commissioner
In addition, the Labor Commissioner has taken the position in its California Paid Sick Leave: Frequently Asked Questions that employers cannot require a doctor’s note when employees use PSL:
“An employer may not deny an employee paid sick leave based solely on a lack of certification from a health care provider. An employee is entitled to take paid sick leave immediately upon the covered employee’s oral or written request. The leave is not conditioned on medical certification.”
Thus, as long as an employee is using PSL, an employer should not request a doctor’s note. A policy or practice of requiring a doctor’s note after a specific number of days should carve out absences for which an employee is using PSL.
However, if an employee is out sick but chooses not to use PSL or has exhausted all their PSL, then the protections of the PSL law don’t apply and an employer’s ability to require a doctor’s note would be based on company policy. Employers requesting doctor’s notes in those situations should do so pursuant to a written policy and should enforce that policy consistently.
Other Leaves
Although the PSL law doesn’t provide for doctor’s notes, employers may still be able to request medical certification under an applicable leave law, such as the California Family Rights Act (CFRA), or in the context of evaluating a request for leave as an accommodation under the California Fair Employment and Housing Act (FEHA).
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
