Sick Leave Policies Requiring Medical Certification Violate the ADA and Rehabilitation Act: Why the Second Circuit Got It Right and the Sixth Circuit Got It Wrong
![handle is hein.journals/gmcvr23 and id is 377 raw text is: SICK LEAVE POLICIES REQUIRING MEDICAL CERTIFICATION
VIOLATE THE ADA AND REHABILITATION AcT:
WHY THE SECOND CIRCUIT GOT IT RIGHT
AND THE SIXTH CIRCUIT GOT IT WRONG
Lydia Petrakis*
INTRODUCTION
Imagine the case of a young woman, Jane Doe, who works at
XYZ Corporation. Jane Doe suffers from severe depression, which
requires her to take sick leave from work. XYZ Corporation wants to
start verifying that sick days taken by its employees are legitimate, so
they enforce a policy requiring employees who take sick leave to pro-
vide a doctor's certification, stating the employee's general diagnosis
or a statement regarding the nature of the employee's illness. This
policy will result in the undesired disclosure of Jane Doe's severe
depression to XYZ Corporation. Unlike individuals with a mobility
disability, who need the assistance of devices such as walkers,
crutches, or wheelchairs, an individual with severe depression does
not need the assistance of any device that would make their illness
apparent to the viewing public. Depression is considered an invisible
disability and, therefore, an individual with this illness does not neces-
sarily disclose their disability by simply walking into a room.1 As an
invisible disability, often medical professionals or only those closest to
the individual, if anyone, are aware that the individual has severe
depression.2 With XYZ Corporation's new policy, it will know that
* George Mason University School of Law, J.D. Candidate, May 2013: Clemson University,
B.A. Political Science, 2009. I would like to thank Brandy Wagstaff for her invaluable guidance
and feedback, Erin Bartlett for her thoughtful editing, and the staff of the George Mason Univer-
sity Civil Rights Law Journal.
1 See Invisible Disabilities Information, DisAnuE Womi , http://www.disabled-world.com/
disability/types/invisible/ (last visited Feb. 14, 2013) (listing depression as a type of invisible disa-
bility and defining invisible disabilities as certain kinds of disabilities that are not immediately
apparent to others).
2 See Chloe Lambert, Thousands of Us Are Hiding Our Misery Behind a Happy Mask.
Could YOU Be a Victim of Smiling Depression?, MAI ON.INE (Oct. 4, 2011), http://www.
dailymail.co.uk/health/article-2044877/Could-YOU-victim-smiling-depression.html (describing
smiling depression as term used to refer to people who, [t]o the outside world . .. give no hint
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