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Question added to topic Legal Basics For StartupsSeptember 12, 2008

How can I request proof for what an employee says is medically necessary leave?

I have an employee who for the last three years has had the worst luck I have ever seen: Two house break-ins, stolen car, stolen boat, allergic food reactions, and the list goes on. Every incident required a Friday off. Two weeks ago she did not show up for two days because of a hurricane threat that never hit and only closed public schools--not public services, public offices, banks, malls, etc.

Today she claims that she has a women's condition that is going to require treatment on Fridays for the next 52-70 weeks! How can I as a small business owner (10 employees) legally ask for proof?
Bad luck can befall the best of us, but the fact that it keeps occurring on Fridays smells very fishy. As a woman myself, I'm hard-pressed to think of a medical condition that requires all-day Friday treatments only, but where I’ll be perfectly fine Monday through Thursday.

How do you ask for proof? Just ask. Get a doctor's note on the doctor's stationery. This alleged condition essentially means that this employee is only intending to work a four-day week for the next . . . one to two years. Can your business afford to pay her full-time for less than full-time work? As an employer with only 10 employees, you do not meet the thresholds where the federal employment laws would apply.

You may have a number of options at your disposal. You may be able to fire her, reduce her salary or work out a telecommuting arrangement where she works from home on the weekend (to make up for the Friday she'll be missing. Speak to a local employment attorney to determine your options under federal and state law.

Nina L. Kaufman, Esq. is an award-winning New York City attorney, edutainer and author. Under her Ask The Business Lawyer brand, she reaches thousands of entrepreneurs and small business owners with her legal services, professional speaking, information products, and LexAppeal weekly ezine. She also writes the Making It Legal blog.

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