What can we ask when employee calls in sick?

Can employers ask an employee what is wrong with them when you call in sick? I know they can ask for a doctor’s statement to return to work but can they ask for details? It was the 2nd time calling in sick in four months with a doctor’s statement brought in the first time.

Posted 10-08-2008

Ann Kiernan responds:

There are a couple of laws that may come into play – the Americans with Disabilities Act, the Family and Medical Leave Act, HIPAA which guards medical privacy, and state laws regarding general privacy and medical privacy. In general, employers should not ask for details. If someone calls in sick, they’re sick – you don’t need to know how or why. The employer can require a doctor’s note, as long as it is done consistently with all employees, and if a serious health condition is involved, charge the time against the employee’s annual FMLA entitlement. By the way, calling in sick two times in four months does not seem excessive.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.