Employers face challenges when managing claimed health-related absences and leave. Of course, employers have legitimate and important interests in prohibiting excessive absenteeism and abuse of sick-leave policies, and though it seems natural and obvious for employers to ask about the circumstances of a health-related absence to verify the validity of the absence, such inquiries may run afoul of the ADA (Americans with Disabilities Act) according to the recent ruling in EEOC v. Dillards.
The court's ruling in Dillards suggests that questions about an employee’s reasons for taking sick leave--unless they are carefully limited to inquiring about an employee's ability to perform his or her job duties--may be an improper inquiry into an employee’s disability.
The ADA provision at issue states:
"a covered entity shall not ... make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." Nonetheless, "[a] covered entity may make inquiries into the ability of an employee to perform job-related functions." 42 U.S.C. § 12112(d)(4)(B).
In light of the Dillards case, a best practice for employers is to limit health-related inquiries to an employee’s ability to perform his or her job responsibilities.
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