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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, October 29, 2008

Does An Employer Asking Why An Employee Is Out Sick Violate The ADA?

The answer the above question is a big maybe as indicated in Asking for Details of Workers' Illness Causes a Legal Migraine for Employers , an important Oct. 13, 2008 National Law Journal article.

The article reports on two lawsuits filed by the EEOC where employers required employees to reveal the nature of their illnesses. The EEOC views this as a violation of the ADA. The article does not do a good job in explaining specifically how such a policy violates the ADA. Presumably, the claim is that it is discrimination on the basis of a perceived disability.  As the article states:

A recent lawsuit against retail chain Dillard's Inc. is highlighting what some claim is a growing problem in the workplace: employers asking too much information about workers' illnesses when asked for sick leave.

  In the Dillard's case, the Equal Employment Opportunity Commission claims that one California store required employees to reveal the specific nature of their illness in order to deem sick leave as an excused absence. The EEOC argues that this policy violates the Americans With Disability Act (ADA). EEOC v. Dillard's, No. 08-CV-1780 (S.D. Calif.).

In New York, a similar lawsuit is pending against Delphi Corp., an automotive parts supplier accused of requiring workers returning from sick leave to sign releases permitting the company to access their medical information. The EEOC alleges that Delphi has retaliated against employees who object to the medical inquiries, in one case firing a worker on the spot. EEOC v. Delphi Corp., No. 07 CV 6430T (W.D.N.Y.).

Also in New York, a federal judge last year struck down a policy by a transit authority that required employees returning from sick leave to disclose a variety of information, including diagnosis, prognosis, symptoms and treatment. The case settled in June. Transport Workers Union of America v. New York City Transit Authority, No. 02-cv-7659 SAS (S.D.N.Y.).

This is an important issue. Law review commentary would be most welcome.

Mitchell H. Rubinstein

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Employment Discrimination, Law Review Articles | Permalink

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