Doctor's Note?

September 18, 2009 3:28 PM

California Employment Law: If an employee is sick, can an employer mandate that the employee provide a doctor's note in order to take time off to get well?

My girlfriend is a waitress. She's also been running a fever, well over 100 degrees, for the past two days. Fortunately she's been off for the past two days, but she's due back on the floor tomorrow, and chances are she won't be 100% fever-free.

This is no good for any number of reasons: Her health, and that of her coworkers and customers could all potentially be compromised.

The catch is that her boss requires a doctors note if an employee calls in sick, which means she's out $100 for a doctor's visit plus lost wages. This seems punitive to me.

This strikes me as insane. Any restauranteur in his right mind would not want a potential walking health violation getting other staff and customers sick. I understand that it would cut down absenteeism, but the potential risks seem insane to me.

But all that's really beside the point. It's stupid, but is it legal?

posted by lekvar to work & money (13 answers total)

Speak with a lawyer.
posted by dfriedman at 3:35 PM on September 18, 2009

Except in FMLA situations, where the law limits how often an employer can re-certify medical conditions, there is nothing in the law prohibiting an employer from requiring a doctor's note when an employee has called in sick.
posted by dhn at 3:39 PM on September 18, 2009

Perhaps you can call the CA Department of Labor and ask? They may well have some advice since this isn't the kind of thing you're likely to take to a lawyer.
posted by zachlipton at 3:39 PM on September 18, 2009

Also, perhaps she could go to a MinuteClinic or similar "doc-in-a-box" establishment. Assuming that her employer's behavior is legal, at least she wouldn't be spending quite so much to see the doctor.

Also, I believe this is is illegal in San Francisco specifically if she happens to work there (your mifi profile says Concord). SF makes it illegal to require a doctor's note to take sick leave for 3 or fewer consecutive days of work (if sick leave is offered, nothing requires it) absent some cause to believe the policy is being abused. Your locality may have similar labor laws, though I doubt it unless Chris Daly runs your town too :-)
posted by zachlipton at 4:18 PM on September 18, 2009

SF makes it illegal to require a doctor's note to take sick leave for 3 or fewer consecutive days of work

I have been told this from a reliable source re: working in L.A., so maybe it's a California thing?

Perhaps you can call the CA Department of Labor and ask? They may well have some advice since this isn't the kind of thing you're likely to take to a lawyer.
Yes. Dept. of Labor is an excellent resource.
posted by drjimmy11 at 4:24 PM on September 18, 2009

Don't call the DIR today, they're furloughed.
posted by elsietheeel at 4:26 PM on September 18, 2009 [1 favorite]

Just throwing this out there in case the law is not in her favor: Can she take it as a "personal day" instead? (e.g. If she's not claiming a sick day, there's no doctor's note required -- of course, that depends on whether her employer allows personal days).

Good luck. My daughter has been in a similar situation before, and it sucks.
posted by amyms at 5:29 PM on September 18, 2009

The sense I got from this page was that while certain cities have outlawed it, it is not a generally found protection. It sounds as if the FMLA will kick in in certain circumstances, but only in those circumstances.
posted by WCityMike at 5:49 PM on September 18, 2009

She might want to check with her employer again given the number of swine flu cases around the country today. My husband was told to stay home from work when I had the flu last week... and my symptoms were very much the same as your girlfriend's.
posted by northernlightgardener at 5:52 PM on September 18, 2009

I work in L.A.. I am required to provide a note if I am ill after the 3rd day. FWIW I work in the medical field and I find this a vile practice.
posted by 6:1 at 6:31 PM on September 18, 2009

I am not the OP's attorney. Relatedly, a bill to mandate paid sick leave in California passed in the state House last year but died in the Senate.
posted by Conrad Cornelius o'Donald o'Dell at 8:49 PM on September 18, 2009

California is at-will, so I'm pretty sure they can require whatever they wish and let you go if you don't comply (so long as it doesn't brush up against Federal anti-discrimination laws). I've never heard of any such protection applying to all workers in CA. I've worked in places here that would fire you for missing a single day, doctor's note or not.

I could be wrong about all of this though, you should definitely check with someone qualified to answer legal questions about California labor law if this going to be a problem. Before doing that, I would at least ask my employer if they'll be reasonable about it. I assume your girlfriend doesn't get anything like health insurance from this place, so "I am really sick and can't afford a doctor" is a pretty good negotiating point. Frankly, it'd be inhuman not to bend a little bit on this. I see these kinds of rules put in place more to have recourse against people who abuse sick days, not punish people who are genuinely laid out with the flu. Some employers are inhuman though, so only she would know if this is going to fly or not.
posted by cj_ at 10:04 PM on September 18, 2009

Since she is a food service worker, I would also look to the health department, of whatever agency is responsible fr food handlers permits and the like.
posted by Good Brain at 10:11 PM on September 18, 2009