Broadly Applied Sick Leave Policy That Requires Diagnosis Violates ADA

A federal trial court in New York recently held that an employer’s policy of making general inquiries about an employee’s health before approving a request for sick leave violates the employment provisions of the Americans with Disabilities Act (ADA). Transport Workers Union of America v. New York Transit Authority (S.D.N.Y. 2004). The court also held that such inquiries may be permissible with regard to certain groups of employees and remanded the case for trial to determine which employee groups may be subjected to these inquiries.

In this case, the employer’s policy was codified in the collective bargaining agreement (CBA) between the plaintiff unions and the Transit Authority and had been in effect, in some form, for decades. The policy required that any employee seeking sick leave must, before missing work, call the Transit Authority to give notice at least one hour before the start of the employee’s scheduled tour of duty. The notice was required to include a brief statement of the nature of the illness or condition causing the absence. Upon returning to work, an employee was required to submit a sick leave application form to his/her supervisor, which stated the “nature of [the] disability” that caused the employee’s absence.

In some circumstances, employees were also required to obtain a certificate from their doctor stating that the employee was so incapacitated by illness that he or she was incapable of performing his or her duties during a specific period of time. The sick leave form also required the doctor to briefly state the employee’s “diagnosis/objective findings” and “treatment/prognosis and expected date of return.”

Although the Transit Authority employees were divided into categories established through collective bargaining to determine when they were required to submit a doctor’s certificate, most employees were required to submit a certificate after an absence of more than three days (some were required to submit the certificate after more than two days’ absence). Additionally, all employees on the “sick leave control list” were required to submit a doctor’s certificate after an absence of any length. An employee was placed on the sick leave control list after taking six absences without a doctor’s certification in one year or after a suspicious pattern of usage.

The Transport Workers Union and two local chapters of the union sued the Transit Authority in federal court, seeking a declaratory judgment that the policy violated the ADA. The ADA prohibits covered entities from making medical inquiries of employees as to whether the individual has a disability, or as to the nature or severity of the disability, unless the inquiry is shown to be job-related and consistent with business necessity. The Transit Authority’s justification for the practice was twofold: curbing sick leave abuse and maintaining workplace and public safety. In analyzing the union’s claim that the sick leave policy violated the ADA, the court applied the framework set out by the U.S. Second Circuit Court of Appeals in Conroy v. New York State Department of Correctional Services. Conroy requires courts to “show that the asserted business necessity is vital to the business,” which requires the employer to show “that the necessity is vital on the facts of the particular case.” The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary.

The court determined that curbing sick leave abuse was a business necessity for the Transit Authority and that the diagnosis requirement in the sick leave policy served the purpose of curbing sick leave abuse. However, the court held that the Transit Authority had not shown a reasonable basis for making inquiries of all employees taking three or more days of sick leave and that “there has been no showing that abuse is so widespread as to justify the virtually universal sweep of the current Policy.” However, the court found that the policy was justified as to the class of employees on the sick leave control list.

The court also held that the policy was reasonably effective in maintaining safety and was justified with respect to bus operators. Since the Transit Authority presented no evidence regarding the safety risks posed by employees other than bus operators, the court found another trial was required to determine whether safety considerations might justify the application of the policy to other classes of employees.

Employer Notes: This decision is a reminder that employers should review all of their employment-related policies, even those that have been in place for years and those that are incorporated into CBAs, to ensure that the policies comply with state and federal antidiscrimination and other laws.

Submitted by John-Edward Alley, Partner, and Amy W. Littrell, Associate, Ford & Harrison LLP, Tampa, Fla. You can contact Mr. Alley at jalley@fordharrison.com and Ms. Littrell at alittrell@fordharrison.com.

Reprinted from Council’s Personnel Law Update newsletter. To subscribe or order a free trial subscription, click here.

Council’s Untangling the FMLA, ADA and Workers’ Comp Overlap program can help you weave your way through thorny ADA issues. Click on the link above for more information, including a detailed agenda, dates, and locations.