Blog

Employees cannot be required to disclose the medical condition for which they take sick leave

U.S. E.E.O.C. v. Dillard’s Inc. 2012 WL 440887 (S.D.Cal.), 25 A.D. Cases 1610

Background: Defendant, Dillard’s El Centro Store had an attendance policy which required its employees to submit a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc….)” One of the employees, Corina Scott was absent from work between May 29 and June 3, 2006 due to a health-related condition for which she sought medical attention. Ms. Scott obtained a signed note from her doctor stating “off work this week return 6/5/06.” However, the employer did not accept the note because it did not state the condition being treated.

Court History: The EEOC brought action on behalf of Charging Party Corina Scott and others similarly-situated who were adversely affected by the Attendance Policy maintained by Defendants.  Defendant’s filed motion for summary judgment.

Pertinent Issues addressed: One of the relevant issues before the Court was whether the attendance policy of employer which required employees to “state the condition being treated” constitute a prohibited inquiry under 42 U .S.C. § 12112(d)(4)(A)?

The District Court discussed the issue as follows:

Pursuant to 42 U.S.C. § 12112(d)(4)(A), “a covered entity shall not … make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Nonetheless, “[a] covered entity may make inquiries into the ability of an employee to perform job-related functions.” § 12112(d)(4)(B). Defendant’s argued that their policy which required an employee to disclose the condition being treated in order to excuse a health-related absence does not violate the plain language of § 12112(d)(4)(A).

Court discussed and relied on two relevant case laws:

In Conroy v. New York Department of Correctional Services, (2d Cir.2003) 333 F.3d 88, the employer’s policy required its employees who returned to work after an absence of four days or more to provide a medical certification which “must include a brief general diagnosis that is ‘sufficiently informative as to allow the employer to make a determination concerning the employee’s entitlement to leave or to evaluate the need to have an employee examined … prior to returning to duty’.” Citing EEOC’s guidance as to what constitutes a disability-related inquiry, the court found the employer’s policy required an improper inquiry in violation of § 12112(d)(4)(A).

Relevant EEOC guidelines are as follows:

A “disability-related inquiry” is a question that is likely to elicit information about a disability, such as asking employees about: whether they have or ever had a disability; the kinds of prescription medications they are taking; and, the results of any genetic tests they have had.

Disability-related inquiries also include asking an employee’s co-worker, family member, or doctor about the employee’s disability.

Questions that are not likely to elicit information about a disability are always permitted, and they include asking employees about their general well-being; whether they can perform job functions; and about their current illegal use of drugs.

In Indergard v. Georgia-Pacific Corporation, (9th Cir.2009) 582 F.3d 1049, Ninth Circuit found an employer’s policy which required its employees to submit to a physical capacity evaluation (PCE) prior to returning to work from medical leave in violation of § 12112(d)(4)(A).

Accordingly, the District Court (in U.S. E.E.O.C. v. Dillard’s Inc.) found the Defendants’ attendance policy in violation of § 12112(d)(4)(A) and held as follows:

“Based upon Conroy and Indergard, the Court concludes Dillard’s Attendance Policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries under § 12112(d)(4)(A). The Policy required an employee to disclose “the nature of the absence (such as migraine, high blood pressure, etc ….)” and “the condition being treated.” This is substantially similar to the “brief general diagnosis” the Second Circuit in Conroy found to be impermissible. Such inquiry by Dillard’s “may tend to reveal a disability.” Indergard, 582 F.3d at 1056. The Policy specifically required employees to disclose their underlying medical condition, and gave as examples migraines and high blood pressure. Yet these are conditions which may evidence a disability.”

Court further rejected the Defendant’s argument that the policy simply required a “general diagnosis”. Court relied on the evidence demonstrated by EEOC in which the Defendant employer had not excused an employee’s absence when she failed to specify the underlying medical condition.

Pointers:

  • It should be noted that an attendance policy may require its employees to submit a doctor’s note specifying the date on which the employee was seen, stating that the absence from work was medically necessary, and stating the date on which such employee would be able to return to work. However, it cannot require the employee to submit a doctor’s note disclosing the underlying condition for which she was treated.