I recently participated in a panel discussion about ADA/FEHA reasonable accommodation and interactive process issues for the LA County Bar Association. I presented on a panel with a plaintiff’s attorney and a disability rights expert/mediator.

Doctor's note
Copyright: hvostik / 123RF Stock Photo

Despite our differing points of view, there were many things we agreed upon, including the need for employers and employees to actively engage together in an interactive dialogue (not monologue) about requested accommodations, and what might work for both the employer and the employee. We agreed that it was necessary and helpful for the employer to document those communications, not only to prove they occurred if challenged, but to avoid misunderstandings. We also agreed that the employer is not required to provide the exact accommodation requested if there are other reasonable accommodations that would achieve the desired result.

Another thing we agreed on was the need for consistency in accommodations, and the problems that occur when one employee is granted a type of accommodation (such as a special parking spot or a schedule change) and another is not, and there is no clear reason why. On that issue, the attendees seemed to like my idea of keeping a Reasonable Accommodation Log, to track how certain issues are accommodated company-wide, and to promote consistency across departments or divisions.

However, one issue that sparked a lot of debate among the panelists (and attendees) was my recommendation to employers to consistently request a doctor’s note to substantiate requests for accommodations, and to facilitate the interactive process. My advice was based on my experience with employees who ask for the moon (such as the stated need for a walking desk, or first class air travel, or a job transfer to a role for a preferred supervisor), but often can’t substantiate those requests with any medical requirement. I argued that since many disabilities are not visible, that accommodation requests can’t be properly evaluated without medical justification. Plus, if you ask for doctor’s notes from some, and not others, then you run into a consistency problem. So my vote is for doctor’s notes.

Boy did I get push-back! My other panelists argued that it is hard for an employee to get a doctor’s note, and often the doctor doesn’t write what they need. They also argued that requiring a note for a small request, or for successive requests, could amount to harassment. I was challenged:  If someone is in a wheelchair are you going to require a note for every structural issue needed to grant full access? To raise the desk, widen the doorway, order transcription equipment, etc.? My answer was “of course not.” I responded that one doctor’s note should cover all of those issues.

So employers are in a bind. If you don’t ask for a doctor’s note, and you accommodate someone out of goodwill, then you could be stuck with that accommodation for a very long time, because once you give it, it is presumed reasonable, and there is a high burden to take it away (which is why some accommodations should be documented as “temporary” by the way). But if you insist on a doctor’s note, the employee feels harassed and pressured.

So what is the answer? I still believe employers should consistently get doctor’s notes, and actually review them to make sure they support the requested accommodation. But ask for them nicely, and be open to granting a temporary accommodation in the meantime.

Can California employers require employees who request paid sick leave to provide a note from their doctors? I addressed that question last May in response to a webinar put out by the California Department of Industrial Relations, the agency that enforces California’s Paid Sick Leave law. In that webinar, the DIR said that requiring employees to provide doctors’ notes could be construed as unlawful interference with their statutory right to the leave.

Copyright: wavebreakmediamicro / 123RF Stock Photo
Copyright: wavebreakmediamicro / 123RF Stock Photo

Having heard nothing further on the issue, I wrote an e-mail to the DIR at AB1522@dir.ca.gov.  According to the response I received last week, the agency is sticking to its guns. They say in their response that, since there’s nothing explicitly allowing employers to ask for doctors’ notes, conditioning the leave on the employee providing one “can arguably interfere with the employee’s use of paid sick leave….” The DIR says that it will analyze whether denying leave for failure to provide a note constitutes retaliation “according to the unique facts of the case.”

Here’s the unedited text of the DIR’s response to my inquiry: Text of AB 1522 e-mail.

As I’ve said before, if paid sick leave is intended to provide a benefit for employees who validly need it, prohibiting doctors’ notes is ridiculous. If, instead, the law is intended as another way to subject well-meaning employers to expensive lawsuits and agency enforcement actions, then it makes perfect sense.

I still believe that the risk of an interference or retaliation claim from asking for a doctor’s note is less than the risk of employees abusing this leave to get three extra paid days off per year. However, the law remains unclear on this point, with nothing but a somewhat equivocal agency interpretation to go on. We’ll continue to watch this issue.

As previously discussed, the California Department of Industrial Relations, which will enforce California’s new Paid Sick Leave law, put out a webinar to discuss compliance issues. According to the webinar, requiring employees to provide doctors’ notes could be construed as unlawful interference with their statutory right to the leave.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Nothing in the statute specifically addresses whether employers can ask for doctors’ notes. But it’s such a well-established practice with similar types of leave, that it seemed safe to assume it was allowable. Still, somehow the DIR has interpreted the statute to say that denying Paid Sick Leave for failure to provide a doctor’s note may be unlawful.

If Paid Sick Leave is intended to provide a benefit for employees who validly need it, prohibiting doctors’ notes is ridiculous. If, instead, the law is intended as another way to subject well-meaning employers to expensive lawsuits and agency enforcement actions, then it makes perfect sense.

The equivocal statement in the webinar, that the DIR believes that asking for a doctor’s note may be unlawful, does not have the force of law. We’ll continue to watch this issue over the 2 months before the law takes effect and report any developments.