Employment Law

I have a surgery scheduled next week, I put the request in…

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Hi there. I have a...
Hi there. I have a surgery scheduled next week, I put the request in today as this is when I got the time slot. Due to understaffing my boss is requesting a note to determine if the surgery is medically necessary. is this legal?... Read full answer
Hi there. I have a surgery scheduled next week, I put the request in today as this is when I got the time slot. Due to understaffing my boss is requesting a note to determine if the surgery is medically necessary. is this legal?
Submitted: 5 months ago.Category: Employment Law
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Customer reply replied 5 months ago
this is the email he sent me:Thank you for the information regarding your need for time off for surgery. I was surprised to get this request and sincerely ***** ***** is nothing serious. As you know, Taylor’s last day with the company is this Friday and Ashley is out of the office through next week for pre-approved vacation. As a result, we are in a tough position and really need you in the office. At the same time, we want to make sure you are able to get necessary treatment for any medical condition. Therefore, we need to better understand if the anticipated surgery is medically necessary and must be done immediately or if it can be scheduled for after Q1 or, at a minimum, when Ashley is back in the office at the end of February. If the surgery cannot be put off until the end of Q1, we will need a doctor’s note confirming that you require immediate surgery and the dates you must be out (we are not seeking any information regarding your diagnosis or treatment). If the surgery can be rescheduled without causing harm, please plan to schedule it for after the end of Q1.Please provide this information as soon as possible so that we can make a determination on your request for time off.
Answered in 2 minutes by:
1/23/2019
Employment Lawyer: Patrick, Esq., Lawyer replied 5 months ago
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 16,242
Experience: Significant experience in all areas of employment law.
Verified

Hello and welcome to Just Answer. My name is ***** ***** it will be my pleasure to answer your question.

Do you have any accrued sick leave? Also, have you used any accrued sick leave in the past 12 months?

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Customer reply replied 5 months ago
our company is a start up and I am part of a very small team, 5 peopel total, so we don't have days in place that are protected
Employment Lawyer: Patrick, Esq., Lawyer replied 5 months ago

Okay.

So CA recently passed a "paid sick leave law," which entitles ALL employers regardless of size to offer 3 days of paid sick leave per year. The law specifically omits any "doctor's note" requirement for utilization of this paid time off, and also prohibits retaliation for taking this time off. (See here for reference: "Unless a medical certification is required pursuant to another leave law, no provision in the paid sick leave law specifically allows (or prohibits) an employer to ask for a doctor’s note as a condition of taking or returning from being sick. Instead, the law states that an employee must be able to take a sick day when a verbal or written request for the time off is communicated to the employer.")

So, essentially, under this new law, employees have 3 days of paid sick leave which are legally protected, and which their employers cannot question or insist on a doctor's note for.

The thing is, this only applies to those first 3 days of time off. Beyond that, and employers are free to require a doctor's note to confirm the medical necessity of a procedure, because employers are otherwise only required to accommodate absences necessitated by medical disabilities. This, of course, excludes voluntary procedures.

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Customer reply replied 5 months ago
what is considered a voluntary procedure?
Employment Lawyer: Patrick, Esq., Lawyer replied 5 months ago

A procedure that is not necessary for your health.

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Customer reply replied 5 months ago
but my employer can't determine that. I dont even need to tell them what kind of procedure I am havingadditionally they can't call the doctors office and ask questions
Employment Lawyer: Patrick, Esq., Lawyer replied 5 months ago

Your employer cannot determine that, but your doctor can, and that is why they are asking for a note. Your doctor would not need to reveal the details of the procedure, they would simply need to state it is medically necessary and not elective.

They can call, but your doctor cannot answer questions about your procedure without your consent.

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