When an employee calls in and says he's not coming to work
because he is "sick," what should you ask - or not ask -
about the reason for his absence? As we all know, there are
potential pitfalls associated with asking an employee about his
medical condition. However, you need some information to evaluate
whether the absent employee has a "serious health
condition" that could trigger coverage under the Family and
Medical Leave Act (FMLA).
Employers are often reluctant to ask for medical information in
this situation because they worry about running afoul of the
Americans with Disabilities Act (ADA), which restricts employer
inquiries into employees' medical information . This risk
arises when the employee's absence is due to a condition that
is also a disability under the ADA.
With the ADA's restrictions in mind, you can still make
inquiries into the employee's ability to perform the functions
of the job and thereby obtain information that will help you
determine if the absence may be covered by the FMLA. Indeed, the
ADA and FMLA have something in common that allows employer inquiry
- coverage is based on whether the employee is able to perform the
job functions. Under the ADA an employee is covered
only if that employee is able to
perform the essential functions of the position with or without
reasonable accommodation. Under the FMLA's "serious health
condition" provision, an employee is covered
only if the employee is unable to
perform the functions of the position because of the condition.
Since the employee's ability to perform his/her job is critical
to determine coverage under both statutes, both permit inquiries
that are related to functions of the job.
Therefore, when an employee calls in "sick," you can
ask the employee if s/he is unable to perform his/her job because
s/he is sick and what part of the job s/he cannot perform.
Depending on the answers to these questions, it is may be
appropriate to ask if the employee intends to see a doctor and how
long it will be before s/he thinks s/he will be able to perform the
The answers to these questions should help you determine if the
absence should be designated as FMLA leave without violating the
restrictions on inquiry under the ADA or FMLA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A female employee traveling for her employer met a "friend" and at her motel room with him became "injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her."