An employee on short-term disability is ready to come back. HR tells them they need a release from the doctor who took them off work. Fair enough. Then HR adds a twist: tell us when the appointment is so we can be on the phone to hear the doctor clear you. The employee thinks that’s illegal and that HR is entitled to a note saying whether they can return and with what restrictions, nothing more.
I saw these facts on the AskHR subreddit. I thought it deserved an answer.
The employee is right. Here’s what an employer should do instead.
Under the FMLA (which often runs alongside STD)
1. Tell them up front. You can require a fitness-for-duty certification only if you apply that policy uniformly to similarly situated employees and you said so in the FMLA designation notice.
2. Limit it to the condition that caused the leave. The certification addresses that health condition and nothing else. If you want the doctor to address the employee’s ability to perform the essential functions of the job, send a list of those functions with the designation notice.
3. Clarify, don’t interrogate. You can contact the provider, but only to clarify or authenticate the certification, and only after giving the employee a chance to fix any deficiency. No requests for more information. No calls from the employee’s direct supervisor. No delaying the return while you sort it out.
4. Skip the second opinion. Unlike a leave certification, the FMLA doesn’t let you demand a second or third opinion on a fitness-for-duty certification.
Under the ADA
5. Ask only what’s job-related. Medical inquiries of current employees must be “job-related and consistent with business necessity.” Can they do the job? With what restrictions? For how long? That’s your lane. A live feed of the exam, with its diagnosis, history, and medications, isn’t.
6. Treat restrictions as a starting point. A release with restrictions triggers the interactive process. Talk with the employee about reasonable accommodations. Don’t reject the note because it isn’t a clean 100% release.
7. Time the exam correctly. If the absence was FMLA leave, an ADA fitness-for-duty exam, if you need one at all, comes after the employee returns, not as a condition of returning.
8. Lock it down. Medical information goes in a separate, confidential file. Supervisors only get the restrictions they need to manage, not the diagnosis or other medical information.
Under HIPAA
9. HIPAA does’t apply here. It regulates health care providers and health plans, not employers acting as employers.
An employer needs the doctor’s answer. It doesn’t need a doctor’s appointment.
