Managing Leave for Sick, Injured, and Disabled Employees:

Requests for Medical Documentation

By:  Matthew G. Boyd, Esq.

Leave for sick, injured or disabled employees is a common, and complicated issue for employers.  Federal and state law has created a web of statutes governing the treatment of these employees: the Family & Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, Workers’ Compensation Law, and applicable state law, such as New York State’s Human Rights Law.  These statutes often overlap in a number of areas, such as accommodations, leave rights, benefits and return to work.

Navigating through this web often leaves employers scratching their heads.  Which law should I apply?  How much leave is the employee entitled?  What steps may an employer take to protect itself?

One important issue involves documentation.  For example, just what documentation may an employer require an employee produce after being out on a medical leave of absence, say for three weeks.

As with any issue that concerns the interplay of these laws, employers must begin their analysis by determining which statutes apply – to the employer and to the employee.  Once the employer has determined which statutes apply, it must apply the statute that provides the greatest protection to the employee.

Assuming the FMLA, ADA, and NYHRL apply in the scenario where an employee is out on a medical leave of absence for three weeks; employers should apply the FMLA, since it provides the greatest protection to the employee.  The ADA and NYHRL generally permits employers to request medical documentation concerning the nature of the alleged disability, the functional limitations resulting from the disability, and the need for requested accommodation.  However, under the FMLA, employers may only request the same basic information requested by the Department of Labor’s Certification of Health Care Provider (CHCP).  While use of the DOL’s sample form (WH-380) is optional, the Department of Labor’s regulations provide that “no additional information may be required” beyond that requested in the CHCP.

The DOL’s CHCP only requests information concerning the employee’s need for leave.  As such, as long as an employee is on FMLA leave, an employer is not permitted to request medical documentation/information concerning other potential accommodations.  When an employee’s leave extends beyond his/her FMLA entitlement, the FMLA no longer applies and, in accordance with the ADA and NYHRL, the employer may request information and medical documentation concerning other potential accommodations.

In the scenario described, the employer may require the employee to complete a CHCP (or similar form drafted by the employer).  If the employee is not expected to return at the conclusion of his/her FMLA-entitlement, the employer may request additional information and medical documentation concerning other potential accommodations as the FMLA entitlement nears expiration.

The information in this article is intended as general background information on labor and employment law, and is not to be considered as legal advice.

Matthew G. Boyd counsels and represents employers in a variety of labor and employment related contexts and is a an associate with Bond, Schoeneck & King, PLLC.  He can be reached at 518-533-3202 or mboyd@bsk.com.