Employer Policy Requiring Absent Employees to Identify the “Nature of the Absence” May Violate the ADA

Contributed by Jill Cheskes

Dillard’s Department Store previously had an attendance policy that required employees who were absent from work for health-related reasons to submit a doctor’s note upon their return identifying the “nature of the absence” in order for the absence to be excused.  Dillard’s practice was to refuse to accept doctor’s notes that did not state their medical condition and required more specific notes to verify that there was a legitimate medical reason for the absence.

In 2007, Dillard’s withdrew the policy but three employees who were asked to provide more specific information (and who were ultimately terminated for unrelated reasons) filed charges with the EEOC challenging the practice.  The EEOC brought suit on behalf of the individuals and a class of similarly situated other employees.

There is a split among the Federal Circuits on this issue with the Second Circuit (which includes New York) finding this to be a violation of the ADA and the Sixth Circuit finding it permissible.  The California court sided with the Second Circuit and denied summary judgment to Dillard’s stating that such an inquiry “invites intrusive questioning into the employee’s medical condition, and tends to elicit information regarding an actual or perceived disability.”

The court said that Dillard’s could avoid liability if it demonstrated that such an inquiry was job-related and consistent with a business necessity but expressed doubt that Dillard’s could meet that standard especially in light of the fact that Dillard’s rescinded the policy.  The court also found that compensatory and punitive damages were available in the case. EEOC v. Dillard’s, Inc.

Although there is still a split among the federal courts on this issue, employers with any sort of attendance policy that requires a doctor’s note upon return from a health-related absence should review the policy for any issues that might be implicated based on this ruling.