February 2012

Senior Field Representative
Nancy Tate

Sick Leave/Return to Work Medical Clearance

Sick Leave is not a right, although a negotiated item in the MOU. It is different from Vacation Leave, which is considered “earned right” under California law. This is why an employer has the right to look over your shoulder when you use up a considerable amount of your sick leave every year. However, the employer does not have the right to have a diagnosis of your personal health issues. They are entitled to a note from a doctor indicating that you are under his or her professional care, that you were too ill or incapacitated to work on a particular day, and that you are well enough to return to work on a subsequent day. Any other information that is requested would be a violation of the Health Insurance Portability and Accountability Act. (HIPAA) Under this act you are not required to provide your employer any other personal medical information.

There is a caveat to this. The employer, with good cause, has a right to send an employee to see the County doctor for an examination for fitness for duty.

Each job classification has specification’s that indicate what you must be able to perform in order to stay employed. So if you have an off-work order, your doctor must indicate what it is that you cannot do at work, not what is wrong with you.

California Labor Code Sections 233 & 234 state:

233. (a) Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee's accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner.

234. An employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233. An employee working under this policy is entitled to appropriate legal and equitable relief pursuant to Section 233.

Please Note:
If the time you took off qualifies under the Family Medical Leave Act (FMLA) and/or California Family Rights Act (CFRA) and you code it as such, there can be no adverse consequences or adverse comments based upon the amount of time you were on FMLA and/or CFRA leave.

If you work for the Probation Department, there is a provision in the MOU reference Return to Work Medical Clearance. The MOU states:

Under the following circumstances, all employees who have been off work due to an illness or injury will report to the San Bernardino County Center for Employee Health and Wellness for a medical evaluation of their condition and authorization to return to work before returning to work:

1. Employees whose treating physician or other qualified medical provider has ordered job modification(s) as a condition for either continuing to work or for returning to work after an illness or injury. This applies to both occupational and non-occupational illness and injury.
2. Employees who have been off work due to communicable diseases such as, but not limited to, chicken pox and measles.
3. Employees who have been absent due to a serious medical condition, when so directed by their appointing authority, and with concurrence of the Center for Employee Health and Wellness.

You do not have to go to the Wellness Center if you are off work for three (3) or more days and come back without any restrictions. This was in a prior MOU but does not apply in our current MOU. If your supervisor orders you to go to the Wellness Center check and see if your illness or injury falls within one of the three sections listed above. If it does not and you are still being ordered to go, contact your Field Representative.

If you have any questions regarding this issue, please contact your field representative.