Responding to a sick employee legally means asking only what you need to run the business, applying FMLA and ADA protections when they’re triggered, keeping any medical information you receive locked down, and making sure the absence never quietly influences discipline or performance decisions. Federal law draws hard lines around each of those steps. The rules are more workable than they first appear once you know which one applies at which stage.
What You Can Ask on the Initial Call
Start with operational questions: how long the employee expects to be out, what deadlines or client commitments need coverage, and who needs access to files, passwords, or tools the person normally handles. Every employer is entitled to ask these.
Where managers get into trouble is pressing for medical details. Under the ADA, asking about the nature or severity of a disability counts as a disability-related inquiry, and those are only permitted when they are job-related and consistent with business necessity.1U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA You can require a doctor’s note to justify sick leave if your policy requires one for all employees equally. You cannot demand a specific diagnosis or press for symptoms out of curiosity. On that first call, stick to scheduling, coverage, and expected return.
When You Can Require Medical Certification
If the absence looks like it may qualify as FMLA leave for a serious health condition, you can require a medical certification from the employee’s healthcare provider. The regulation limits what the certification must include: the provider’s contact information, the approximate start date and probable duration of the condition, medical facts sufficient to support the need for leave, and information about whether the employee can perform essential job functions.2eCFR. 29 CFR 825.306 – Content of Medical Certification for Leave Taken Because of an Employees Own Serious Health Condition or the Serious Health Condition of a Family Member A specific diagnosis is not required.
The Department of Labor’s optional WH-380-E form covers exactly the information the regulations allow and nothing more.3U.S. Department of Labor. Certification of Health Care Provider for Employees Serious Health Condition Under the Family and Medical Leave Act The employee has at least 15 calendar days after the request to return it.4eCFR. 29 CFR 825.305 – Certification, General Rule If the employee fails to provide a complete certification after being given a chance to cure any deficiency, you may deny FMLA leave.
Any time you request medical information, you risk receiving genetic information, which would trigger the Genetic Information Nondiscrimination Act. The fix is written safe harbor language directing the provider not to share genetic test results, genetic services information, or family medical history. If you include the language and the provider sends genetic information anyway, the receipt is treated as inadvertent and does not violate the law.5eCFR. 29 CFR Part 1635 – Genetic Information Nondiscrimination Act of 2008 The WH-380-E already contains this warning.
Whether FMLA Applies
The Family and Medical Leave Act provides up to 12 workweeks of unpaid, job-protected leave in a 12-month period for qualifying reasons, including a serious health condition that prevents the employee from doing their job.6Office of the Law Revision Counsel. 29 USC 2612 – Leave Requirement To be eligible, the employee must have worked for you for at least 12 months and logged at least 1,250 hours during the 12 months before leave begins. The employer must also have at least 50 employees within 75 miles of the worksite.7Office of the Law Revision Counsel. 29 USC 2611 – Definitions Public agencies and public or private elementary and secondary schools are covered regardless of headcount.
Once you know an absence may qualify, you have five business days to give the employee an eligibility notice telling them whether they qualify. Along with that, you must issue a rights and responsibilities notice explaining what the employee must do (such as furnishing certification) and the consequences of not doing it. After you determine whether the leave qualifies, a designation notice confirms whether it is FMLA-protected.8eCFR. 29 CFR 825.300 – Employer Notice Requirements Missing these deadlines can strip you of the ability to later deny FMLA protection or require a fitness-for-duty certification.
FMLA leave does not have to be one continuous block. When medically necessary, an employee can take it intermittently or on a reduced schedule. Employer permission is not required for intermittent leave taken for a serious health condition, though you can require a certification explaining why the intermittent schedule is medically necessary and how often and how long episodes are expected to last.9eCFR. 29 CFR 825.202 – Intermittent Leave or Reduced Leave Schedule An employee with migraines might use FMLA in unpredictable two-hour increments, and you cannot discipline them for the pattern as long as the certification supports it.
Accommodating a Longer-Term Condition
If a short-term illness becomes something longer, the Americans with Disabilities Act may apply. The ADA covers physical or mental impairments that substantially limit a major life activity, including conditions that are episodic or in remission.10Office of the Law Revision Counsel. 42 USC Chapter 126 – Equal Opportunity for Individuals With Disabilities When it does, you must provide reasonable accommodations unless doing so would impose an undue hardship.
Reasonable accommodations can include modified work schedules, job restructuring, reassignment to a vacant position, or equipment modifications. The process starts with a conversation between employer and employee about what the employee needs and what the job requires. Courts look closely at whether the employer genuinely engaged in that interactive process. Refusing to discuss accommodations at all is one of the fastest ways to lose an ADA lawsuit.
Keeping Medical Information Confidential
Under the ADA, any medical information you collect must be stored on separate forms and in separate files from general personnel records.11Office of the Law Revision Counsel. 42 USC 12112 – Discrimination Access is limited to a narrow group: supervisors and managers who need to know about work restrictions and accommodations, first aid and safety personnel if the condition might require emergency treatment, and government officials investigating compliance. That is the complete list. Digital records should be encrypted and restricted to authorized HR personnel.
Sometimes you need to clarify a medical certification. Under HIPAA, a healthcare provider cannot disclose an employee’s medical information to the employer without written authorization, unless another law requires it.12HHS.gov. Employers and Health Information in the Workplace FMLA regulations do let the employer contact the provider to authenticate or clarify a certification, but only through an HR professional, a leave administrator, or a healthcare provider acting on the employer’s behalf. The employee’s direct supervisor cannot make that call.13eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification; Second and Third Opinions
Contagious Illness in the Workplace
When an employee reports a contagious illness, workplace safety law runs alongside leave law. The OSH Act’s General Duty Clause requires employers to keep the workplace free from recognized hazards likely to cause death or serious physical harm.14Office of the Law Revision Counsel. 29 USC 654 – Duties of Employers and Employees In practice, that means notifying coworkers who may have been exposed, cleaning and disinfecting the areas the sick employee worked in, and considering whether additional precautions fit the specific illness.
Do not reveal the sick employee’s identity when you notify coworkers. You can say an employee in the department tested positive for a specific illness without naming the person. Disclosing the identity would conflict with the ADA’s confidentiality requirements.
If a contagious employee wants to keep working, the ADA lets you exclude them only if their presence poses a “direct threat,” meaning a significant risk of substantial harm that cannot be eliminated by reasonable accommodation. The determination requires an individualized assessment and cannot rest on fear or stereotypes.1U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
Bringing the Employee Back to Work
If the employee took FMLA leave for their own serious health condition, you can require a fitness-for-duty certification before they return, but only under a uniformly applied policy that covers all similarly situated employees. You cannot single anyone out. The certification comes from the employee’s own healthcare provider and must confirm the employee can resume work.15eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
If you want the certification to address the ability to perform specific essential job functions, you must have provided a list of those functions in the designation notice at the start of the leave. You cannot introduce new requirements at the end. The employee pays for the fitness-for-duty certification, and no second or third opinions are allowed on it.
For intermittent FMLA leave, you generally cannot require a fitness-for-duty certification for each absence. The exception is when reasonable safety concerns exist about the employee’s ability to perform their duties, and even then you can require it at most once every 30 days.
Pay During the Absence
FMLA is unpaid. It protects the job but not the paycheck. Wage replacement, if any, comes from two other places.
Short-term disability insurance replaces a portion of wages while the employee cannot work due to illness or injury. About ten states mandate some form of temporary disability coverage, with benefit amounts that vary and are typically set as a percentage of wages up to a weekly cap. These benefits can run at the same time as FMLA leave, so an employee may be simultaneously job-protected under FMLA and receiving partial wage replacement through disability insurance. The two are not automatically linked. Coordinate them explicitly so the employee knows whether the leave is protected, paid, or both.
Separately, a growing number of states and localities require paid sick leave, with accrual rates that generally fall in the range of one hour of paid leave for every 30 to 40 hours worked. These laws typically cover short-term absences and have lower documentation thresholds than FMLA. Because the rules vary by jurisdiction, check the law where each employee is located rather than relying on any single national standard.
Avoiding Retaliation Claims
Federal law prohibits interfering with, restraining, or denying any FMLA right. It is also unlawful to fire or otherwise discriminate against an employee for taking FMLA leave, filing an FMLA complaint, or participating in an FMLA proceeding.16Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts Employers create problems for themselves by counting FMLA-protected absences under an attendance policy, giving negative performance reviews that reference protected leave, or restructuring a role to eliminate the returning employee’s job.
The ADA has its own anti-retaliation provision. You cannot punish someone for requesting a reasonable accommodation, even if the request is denied. Every decision about a sick employee during or after leave should be documented with a clear, non-retaliatory business reason. If you would have made the same decision regardless of the leave, the records should show it.
Recording a Work-Related Illness
If the illness is work-related, OSHA recordkeeping runs separately from any leave obligation. Employers covered by OSHA’s recordkeeping standard must log a work-related illness on the OSHA 300 log if it results in death, days away from work, restricted duty, medical treatment beyond first aid, loss of consciousness, or a diagnosis as a significant injury or illness by a licensed healthcare professional.17Occupational Safety and Health Administration (OSHA). Recordkeeping – Detailed Guidance for OSHAs Injury and Illness Recordkeeping Rule Recording an illness on the OSHA log does not automatically mean it qualifies for workers’ compensation. Analyze the case under OSHA’s recording criteria and the applicable state workers’ compensation rules independently.