Re: 911:: Sick Leave Question

[Guest guest]

>On our absence slips there is a spot to fill in that says " reason " under

sick leave. I believe that is wrong, can anyone help me out?<

We always had the " reason " space on our form we filled out

when sick, but there was never any consequence if it

wasn't filled out.

I don't know of any law that would forbid your employer

asking why you were using some of your sick leave, I

also think they would be hard pressed to do anything if

you told them it was none of their business.

If you have a union, contact them.

Also, the Department of Health and Human Services

has a site where you can email them a question

concerning medical privacy, you might try that.

Please.... let us know if you find out anything.

http://www.hhs.gov/ocr/hipaa/

Weintraut

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[Guest guest]

On Sun, 23 Feb 2003 09:41:29 -0500, " Katt "

said:

> I know this has been brought up before and I apologize in advance for

> floggin the dead equine...

ADA laws prohibit your employer from requiring that you disclose whatever

illness you have that caused your absence. Most employers are aware of

this and won't even ask.

[Guest guest]

In a message dated 2/23/2003 9:40:10 AM Pacific Standard Time,

rweintraut@... writes:

>

> I can't see where the American with Disabilities Act would have

> anything to do with your employer asking why you were using sick leave.

>

>

THe ADA covers disability. Being sick with a cold, flu, headache isn't a

disability under the ADA. What follows is an excerpt from my book the

Resource Guide For Persons With Disabilities that I wrote and had published

in 1994. The ADA is an outgrowth of the Rehabilitation Act of 1973,

specifically section 504. The language to defense " handicapped " (i.e.,

disabled which is the PC term) used in the ADA came direction from Section

504 which is:

Under Section 504, a " handicapped person " means " any person who:

1. Has a physical or mental impairment which substantially limits one or

more of such person's major life activities;

2. Has a record of such an impairment; or

3. Is regarded as having such an impairment.

Section 504 protects the civil rights of individuals who are qualified to

participate and who have disabilities such as, but not limited to, the

following:

Blindness or visual impairments

Cerebral palsy

Chronic illnesses, such as: AIDS, arthritis, cancer, cardiac diseases,

diabetes, multiple sclerosis, muscular dystrophy, psychiatric disorders.

Deafness or hearing impairments

Drug or alcohol addiction

Epilepsy or seizure disorders

mental retardation

Orthopedic handicap

Specific learning disability

Speech disorder

Spinal cord or traumatic brain injury

Section 504 pertains mainly to post-secondary educational situations,

however, it does apply when Federal financial assistance is provided to an

entity. A person with a disability is a person who can prove that s/he has

some form of impairment which substantially limits one or more of his/her

life activities such as caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, learning and working. Anyone who has a record of

such an impairment in his/her past or any one who is regarded as having such

impairment is protected.

The regulations prohibit discrimination against qualified persons with

disabilities in any aspect of employment, including recruitment, hiring,

rates of promotion, training, fringe benefits and any other term of

employment, including social or recreational programs sponsored by an

employer.

In the employment context a qualified handicapped person is a person who can

perform the essential functions of the job in question with " reasonable

accommodation(s) " . The recipients are required to make these reasonable

accommodations unless the recipient can demonstrate that the accommodation

would impose " undue hardship " on the operation of the program. Whether an

accommodation will impose an undue hardship is not up to the

employer/recipient alone to determine. It is determined on a case-by-case

basis.

The Americans With Disabilities Act is very similar to Section 504, but it

carries the precepts of Section 504 to public entities and private employers

as well. The ADA mandates that job discrimination against people with

disabilities is illegal if practiced by: private employers, state and local

governments, employment agencies, labor organizations and labor-management

committees.

The ADA give responsibilities to both the Equal Employment Opportunity

Commission ( " EEOC " ) and the Department of Justice ( " DOJ " ) for enforcement

efforts. For further information regarding enforcement, please contact

either of these two entities.

Title I of the ADA protects qualified individuals with disabilities from

employment discrimination. Under the ADA, a person has a disability if s/he

has a physical or mental impairment that substantially limits a major life

activity. The ADA also protects individuals who have a record of a

substantially limiting impairment and people who are regarded as having a

substantially limiting impairment.

An individual with a disability must also be qualified to perform he

essential functions of a job wit fish or without reasonable accommodation in

order to be protected by the ADA. This means that the applicant must:

1. Satisfy job requirements for educational background, employment

experience, skills, licenses and any other qualification standards that are

job related; and

2. Be able to perform those tasks that are essential to the job, with or

without reasonable accommodation.

The issue then becomes one of disclosure. Certain types of disabilities are

readily visible and very often " abled " persons think that it is only the

person in the wheelchair, with the guide dog, with something else attached to

them are disabled. There are many people with what are known as hidden

disabilities and there are a vast number of them such as learning

disabilities, emotional disabilities such as bipolar disorder, and physical

disabilities such as chronic fatigue, multiple sclerosis, carpal tunnel

syndrome, cancer and HIV/AIDS. These are the ones where the issue of

disclosure can be a problem -- do you disclose or do you not. This is

something each individual must address on their own. No one can make that

decision for you and just because you choose to disclose in one situation

does not mean that you must disclose in another. Keep in mind, however, if

you do not disclose, you cannot expect the protections of the ADA.

What follows are the stages that an individual who becomes disabled is likely

to go through. There are telephone numbers of entities that may be of

assistance financially, medically and educationally. There is also advice of

some things you can do to " keep your sanity -- and friends " while you go

through the process. These are not foolproof solutions, they are suggestions

that have worked for some people along the way.

[Guest guest]

This is from another chapter -- which I thought might be pertinent. Some of

the laws have been changed slightly since publication, for instance, in

California you now need to designate who your treating physician will be

BEFORE an injury or sickness occurs or they will pick one for you. Even if

they do though, in California, after 30 days you can switch to a doctor you

like, but those initial 30 days can have a lot to do with diagnosis and

obtaining the kind of treatment you prefer.

The issue then becomes one of disclosure. Certain types of disabilities are

readily visible and very often " abled " persons think that it is only the

person in the wheelchair, with the guide dog, with something else attached to

them are disabled. There are many people with what are known as hidden

disabilities and there are a vast number of them such as learning

disabilities, emotional disabilities such as bipolar disorder, and physical

disabilities such as chronic fatigue, multiple sclerosis, carpal tunnel

syndrome, cancer and HIV/AIDS. These are the ones where the issue of

disclosure can be a problem -- do you disclose or do you not. This is

something each individual must address on their own. No one can make that

decision for you and just because you choose to disclose in one situation

does not mean that you must disclose in another. Keep in mind, however, if

you do not disclose, you cannot expect the protections of the ADA.

What follows are the stages that an individual who becomes disabled is likely

to go through. There are telephone numbers of entities that may be of

assistance financially, medically and educationally. There is also advice of

some things you can do to " keep your sanity -- and friends " while you go

through the process. These are not foolproof solutions, they are suggestions

that have worked for some people along the way.

WHEN YOU GET HURT AND ARE STILL WORKING

Not every injury that occurs at work means an individual is disabled.

That is something that your doctor will need to discuss with you. If it

looks like your injury will have some permanent/residual effects, if you meet

the criteria for disability under the ADA, you are entitled to reasonable

accommodations.

As soon as you are hurt get to a doctor.

You will need to consult your company's policies as to whether or not you

must see their doctor or if you can see your own. In many instances if you

have a request on file that in case of injury you be sent to your own

personal physician most companies will honor this request. The problem

arises when you develop an injury such as carpal tunnel syndrome where most

family physicians do not know the latest treatments for the condition. The

family doctor can, however, send you to a hand specialist for a consultation.

You can legally change doctors once. Be sure that you can work with the

doctor you choose to change to. If you are the type of person who requires a

nurturing bedside manner be sure to ask the doctor if s/he is that way. If

you want to be an equal participant in your recovery, be sure the doctor will

work with your proactive approach.

If you end up with a company doctor, check to be sure how long of need to

treat with this doctor. Many of these doctors are excellent. They are,

however company doctors, and must balance the best care for you with the

company's desire to keep costs down. There have been any number of cases

when the company's doctor believes there is nothing wrong with the person ,

sends them back to work, and there is still plenty wrong. Fortunately they

are usually sending you back to work around the time you can switch to your

own doctor.

One way to handle this situation - as soon as you become injured, start

looking for your own doctor. Ask friends, co-workers, check with support

groups in your area, and then interview these doctors to see which is the

best one for you. If you find that the company doctor is the one you want

and you are getting better with this doctor, there is no reason to switch.

DO NOT WAIT UNTIL YOU ARE SENT BACK TO WORK TO START LOOKING FOR A DOCTOR YOU

WANT TO WORK WITH if you think there is any chance you will not be physically

ready to return to work.

There is a lot of confusion as to which specializations of doctors you can

treat with. For a hand problem by all the a hand specialist. You can also

treat with chiropractors, acupuncturists, the technique, myofascial

pain specialists, or virtually any type of alternative medical provider you

wish. However you should keep in mind that insurance companies still prefer

AMA doctors rather than alternative providers. There are, however, many AMA

doctors who also believe in alternative medicine and will be happy to

authorize treatments with the alternative providers. This is also something

you should consider when interviewing for your treating physician.

Request an occupational therapist to come and evaluate your work space.

Have them prepare a list of all the equipment you will need. The workers

compensation carrier should also send a vocational evaluator to your

worksite.

You should also request an evaluation from a company such as SHARE or METS.

These entities have you come to their site and they test you on various types

of equipment such as chairs and keyboards. Through the testing they can

evaluate which equipment will help you most. Both companies have occupationa

l therapists on staff who will also come solve to your worksite.

If you have a job that requires computer usage and your upper extremities

have been affected, or if you have a condition such as multiple sclerosis,

voice recognition may be a solution to your problem. At the moment there are

3 types of voice recognition on the market for IBM and clone equipment:

Kurzweil, Dragon Dictate, and IBM. Power Secretary is the available voice

program for Apple. There are others out there, these are the major products.

It is in your employer's best interest to ensure that you have the proper

equipment to continue working and not exacerbate the injury.

[Guest guest]

>ADA laws prohibit your employer from requiring that you disclose whatever

illness you have that caused your absence. Most employers are aware of

this and won't even ask.<

I would be very interested in seeing this in writing.

I can't see where the American with Disabilities Act would have

anything to do with your employer asking why you were using sick leave.

I feel that the Fair Labor Standards Act would be a more appropriate

source, but can find nothing that disallows this practice.

It's an interesting question, and I hope we can find a definite answer.

Weintraut

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[Guest guest]

Good information on the ADA...

Since you seem to be very well versed in this type of issue,

what's your take on the question...

Can an employer require the employee to give a reason

for using sick time?

And, do you know of any legal opinion to back it up?

Weintraut

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[Guest guest]

I know they can require a dr.'s note. All the dr.'s notes that I have had or

have seen do NOT state a diagnosis, just that so-and-so was " under my care

on whatever date(s). " My thinking is, if the doc doesn't tell your employer

what your problem is, why would I have to on my absence slip?

A Katt

michelle_katt@... (personal)

kattm@... (work)

(wireless)

(home)

[Guest guest]

>My thinking is, if the doc doesn't tell your employer

what your problem is, why would I have to on my absence slip?<

Please don't misunderstand... I don't think you should have to...

But I don't think there is any law that would protect you, unless

your illness fell under the ADA or a violation of your civil rights

regarding medical privacy.

And those circumstances would be very rare.

I hope someone proves me wrong here.

Weintraut

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[Guest guest]

HI ,

> <<<Good information on the ADA...>>>

Thanks.

> <<<Since you seem to be very well versed in this type of issue, what's your

> take on the question...>>

Really only on the Civil Rights act of 1964, Rehab Act of 73 and the ADA. I

haven't gotten into the Family Leave Act or really looked much at sick leave

issues since my focus (and former former job was in counseling that dealt

mostly with people with disabilities and working with them to self-empower

and find jobs with the help of the ADA). I do have some knowledge on

transient and disabling illness.

> <<<Can an employer require the employee to give a reason for using sick

> time?>

Generally speaking yes. A transient sickness or illness like a cold, flu,

upset stomach or regular old headache, things like that there's no legal bar

on it that I've ever seen. It can be construed as no different than asking

" so what are you planting in your garden this year? " The issue DOES, to some

extent come under the Civil Rights Act of 1964 discrimination and harassment

issues IF the employer does not ask basically the same questions of EVERY

employee. If only one or two people are ever asked " what are you sick with? "

and no one else is the law would need to look at other issues around that

employee -- have they been written up for trivial things like " you made a

typo on that street name " and it is later brought up on an evaluation (I have

seen that done). If someone else consistently makes the same or perhaps even

more typos but never has a word said about it then one needs to look at why

the " sick " employee receives more attention. If a pattern can be established

that this person is consistently treated differently then there may be a

discriminatory issue.

If everyone, including the supervisor, is mandated by written policy to state

what the illness is then there is no discriminatory issue and the question

can be asked.

Same with the doctor's note issue is someone is out for more that a day or so

(or whenever it is required) as long as everyone must do the same and be

treated the same it is a policy and, so far, no illegal to ask.

For the ADA to come into play there must first be a disability that

significantly interferes with a life function such as work, play, and

basically general living. A cold may temporarily interfere with life

function however it is transient. A disability (I'm not sure if this is the

rehab act or ADA) must be of a certain duration (I think 6 months or more).

Migraines can be considered a disability under the ADA because they

significantly interfere with life function -- even if they only occur once a

month -- with migraines you know there is another coming and most people who

get them can't move and the pain is horrendous you can think you are going to

die. They are going to be around for 6 months or more. A regular old

headache is not because its going to go away. So the illness has to be

significant enough to impair an essential life function (I forgot the

essential part above).

To utilize the ADA and its accommodation aspects the person needs to disclose

it to the employer AND state how far the supervisor and/or employer can go

with that information. If only the supervisor can know and the supervisor

tells anyone else the supervisor can be in trouble. (What I found with most

of my clients who were utilizing the ADA they LOVED talking about their

disabilities mostly because they got attention and sympathy for it -- often

trying turning the ADA into an entitlement program than an empowering one --

but that's just one of the issues that comes up with a system like the

disability system that makes people lose or give up everything before they

get a leg up).

So if the sickness that is being questioned is one that is going to occur on

a regular basis -- like if someone was diagnosed with say Lupus, chronic

fatigue or MS which is not always active -- they may call in sick for the

symptom(s) that are occurring and just consider it being sick. However,

there is the larger disability of the disease, which many people would not

wish to disclose because they are afraid of the stigma some people still

associate with certain illnesses. So if the sick is related to a boarder

disability I would suggest the person tell the supervisor that they have a

confidential disclosure under the ADA that they have a disability and that at

this time they are only requesting the accommodation of when the intermittent

sick side of it pops up they will call in sick. Theoretically the supervisor

should accept that statement and let it go and not push and say " well what is

it? " There you get into a gray area of the law in how much of a disability

do you need to disclose. In that case I'd get a doctor's note that does say

" beth has a disability that falls under the purview of the ADA, she does

not require any accommodations at this time but may, on occasion, need to

call in sick due to this. "

So that bottom line, if everyone is asked what the sickness is there is no

discrimination and no legal issue.

>

[Guest guest]

Thank you very much. You answered my question, completely!

A Katt

michelle_katt@... (personal)

kattm@... (work)

(wireless)

(home)

[Guest guest]

yours, gfwebpage.

A Katt

michelle_katt@... (personal)

kattm@... (work)

(wireless)

(home)