What do you do when you suspect that an employee’s doctor note is 🐄💩???

Whoa! Slow down! There’s an unusual amount of smoking billowing from the blog servers.

Let me check on this, and I’ll be right back.

Crisis averted.

A sketchy doctor’s note.

When you receive a doctor note from an employee, one or two federal statutes often come into play: the Americans with Disabilities Act and the Family and Medical Leave Act.

Today’s blog post focuses on disabilities under the ADA. An individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

In 2018, the U.S. Equal Employment Opportunity Commission sued a skilled nursing and rehabilitation center for violating the ADA. According to the EEOC’s suit, the defendant hired the employee as a laundry technician in February 2015. When the employee requested leave as a reasonable accommodation for her anxiety disorder in November 2015, management told her she could not take leave, as the FMLA did not apply to her.

Allegedly, the defendant required the employee to obtain and return to management a note from her doctor, clearing her to return to work. After the employee produced a note, the defendant claims it contacted her doctor, who said that she had not released the employee to return to work (nor would she) and otherwise denied giving the employee the note.

So, yadda, yadda, yadda, the defendant fired the employee.

Three years of litigation later — (insert lawyer joke here) — the Sixth Circuit Court of Appeals in this recent opinion winnowed down the issue to whether there was sufficient evidence to establish that the defendant “regarded” an employee as having a physical or mental impairment.

And the employee may prevail anyway.

Oh, I yadda-yadda’d over the best part, the bisque the employee’s termination paperwork. That paperwork consisted of a “Change of Status and Separation Form,” a “Supervisory Action Notice,” and a page of notes. These documents all stated that the employee’s termination was that she was “unable to perform her job duties.”

Unable to perform her job duties, eh?

Let’s think about that. The Sixth Circuit opinion didn’t reference any additional documentation to show a track record of poor job performance. Plus, “unable to perform her job duties” immediately followed an FMLA request, which indicated that the employee suffered from anxiety.

What if, instead, the employer indicated that it terminated the employee for furnishing a bogus medical note, with a summary of how the employer reached that conclusion? I think the employer is winning this case.

Unfortunately, however, it sounds to me like the employer may have regarded the employee as disabled. And while my opinion doesn’t mean squat, the Sixth Circuit Court of Appeals agreed.

So, boo-yah!

Employer takeaways.

1. Don’t sugar-coat the reasons for termination. Maybe the defendant was concerned that mentioning the doctor’s note in the termination paperwork would make it seem like the employee’s health factored into its employment decision. But that funky note literally was the reason. If you honestly believe that an employee manufactured a doctor note, and your investigation backs you up, say so.
2. Don’t make an employee return to work without any medical restrictions. That’s a recipe for an ADA disaster. Employees don’t need to be 100% healthy. Instead, ensure that the returning employees can perform the job’s essential functions with or without accommodation.
3. Know when to fold ’em. Pun intended. The employee was a “laundry technician.” How much would it have cost to settle this case? I’m guessing a lot less than it cost to litigate.

Hey, we’re not done yet!

The Employer Handbook Zoom Office Hour is up next at Noon ET with special guest Abigail Morrow. Abigail is Assistant General Counsel at Staffmark Group, a family of specialty staffing and recruiting brands.

Among other things, we’ll address employee mental health and the workplace and tackle staffing/recruiting issues that impact HR-compliance.

You can still register by clicking here.