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Release from Work Certifications

Employees seeking off-work slips pose more difficult problems. Although most have legitimate illness, some do not. There are also employees with valid reasons for missing work, such as caring for a sick child, who seek medical excuses for missing work because personal illness is the only approved reason for absence from their workplace. Employers argue that unnecessary absences hurt all employees by reducing the productivity of the company. This can result in reduced benefits for employees with legitimate medical needs and in lost jobs or even bankruptcy. Disputes over time off from work pose the recurring dilemma of occupational medical practice: how are physicians to resolve the conflict between the patient's interests and the employer's interests?

This conflict is greatest when the patient sees the physician after recovering from the putative illness, requesting an excuse for time already taken. Assuming that there is no objective evidence to corroborate the patient's claims, the physician is put in the position of an investigator for the employer. Some physicians believe that employees do not have a duty to tell the truth to a physician who is acting in this investigatory role.[216] These physicians may accept the patient's assertions unquestioningly because they see their role as one of patient advocate. This may benefit the patient, but it misrepresents the physician's role to the employer. In extreme circumstances, it may even constitute a fraud against the employer. It is also detrimental to the physician's professional reputation. Physicians who become known as an easy source of time off will find that they have the same unsavory reputation as those who dispense drugs too readily.

Another approach is to refuse to participate in off-work certifications. This position injures the employee because many employers punish unexcused absences. The best approach may be to limit off-work certifications to patients whom the physician has treated or diagnoses with an injury or illness. This does not put the physician into the position of an investigator, while still allowing legitimately ill employees to be excused from work. As a work policy matter, this may unnecessarily increase health care costs by forcing employees to see a physician for every minor illness. It also fails to deal with problems such as the illness of other family members for whom the employee must care.

Many employers are adopting no-fault absence plans. Employees are given a certain number of personal days that can be used for illness, vacations, or other personal business. This eliminates the incentive to fake illness to get time off from work. It has benefits in dealing with ADA-covered disabled employees because it does not require the employer to inquire into the employee's reason for missing work. Such plans have disadvantages too. If employees do not need to see a physician to get a back-to-work slip, they may return to work before it is medically wise. Treating all absences alike may also put the employer in conflict with the ADA. While the ADA does not require disabled employees to be given more sick days than those who are not disabled, the rules interpreting the ADA indicate that part-time work may be part of a reasonable accommodation to the employee's disability.

215Washington v. Harper. 110 S Ct 1028 (1990).

[216]Holleman WL; Holleman MC: School and work release evaluations. JAMA 1988 Dec 23-30 260:3629-3640.


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