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On Thursday, August 2, 2012 by M. Cheryl Kirby posted in Employment Law Blog
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 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 job.

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.
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