A Quick Doctor’s Note

Doctors have only the best intentions in mind when they examine a patient and issue recommendations after the meeting. However, years of medical education and training – as extensive as it is – does not concern itself with the legal ramifications that ripple from mundane tasks such as writing a doctor’s note.

I observed this phenomenon recently while defending a pregnancy discrimination and wrongful termination case. There, the doctor had scribbled on cartoon stationary prohibiting plaintiff from lifting more than 11 pounds. At the time, plaintiff was a certified nursing assistant at a convalescent hospital that required regular hands-on care. In fact, many of its patients were bedridden and rendered immobile. Not surprisingly, the hospital requested clarification on this note.

Unfortunately, this tiny piece of paper became a seed of litigation.

It would therefore be useful to know that California Code of Regulations, Title 2, section 7291.10, subdivision (b) allows the employer to require medical certification before granting pregnancy disability leave or transfer, as long as the employer requires certification of other similarly situated employees. A “certification” is defined in 7291.2, subdivision (d) as a written communication from the health care provider that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or duties.

The requirements are further laid out in section 7291.2, subdivision (d) as follows:

(1) The certification indicating disability necessitating a leave should contain:
(A) The date on which the woman became disabled due to pregnancy;
(B) The probable duration of the period or periods of disability, and
(C) An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons.

(2) The certification indicating the medical advisability of the transfer should contain:
(A) The date on which the need to transfer became medically advisable;
(B) The probable duration of the period or periods of the need to transfer; and
(C) An explanatory statement that, due to the woman’s pregnancy, the transfer is medically advisable.

For employers, it would be wise to create a form sheet containing these questions to be answered by the doctor. For doctors, adhering to these requirements may just take preventative care to a whole new level.

Written by Matthew L. Kinley