Can an Employer Call an Employee's Doctor to Check on a Doctor's Note?

Sick Leave Policies

Federal and state employment laws don't regulate employers' sick leave policies or even mandate employers to provide sick leave. Instead, the government leaves it up to the employer to construct its own sick leave or paid time off policies. The only thing the government requires is consistent administration of the policies if the employer does provide paid time off or sick time. Not all employers have sick leave -- some combine both vacation and sick leave to create paid time off, or PTO, banks for employees. This way, they essentially eliminate the need for employees to justify sick time off by providing a doctor's note.

Supervisor Access

For companies that implement sick leave policies that require employees to submit documentation, such as a doctor's note, it's not illegal to ask for a doctor's note. But it's not acceptable for the employee's immediate supervisor to have access to doctor's notes or medical information about the employee. A member of the HR staff should maintain separate records for employment matters and medical information. Likewise, a supervisor doesn't have a legitimate need to contact the employee's health care provider, nor should an employer contact an employee's doctor for additional information about the employee's illness. The only information the employer should have is that the employee's absence was for a medical reason, and that's only if the employer's policy requires a doctor's note.

FMLA Leave Certification

The Family and Medical Leave Act provides up to 12 weeks of unpaid, job-protected leave to employees with a serious health condition or to care for a family member with a serious health condition. The FMLA is not a sick leave policy, but to qualify for the time off, an eligible employee must submit a certification from her health care provider. Employees' records concerning FMLA absences are subject to privacy rules under the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act.

Limited to Clarification

If an employer needs clarification about physician-provided statements in an employee's application for FMLA leave, the employer first must request additional information from the employee via a written request. When an employee can't provide additional information or clarification of the doctor's statement, the employer may contact the employee's health care provider -- but only after the employer obtains written authorization from the employee.