Privacy Issues in the Community College Workplace

A copy of an approved DFEH form for CFRA certification is included in this workbook as Appendix N . An employer cannot ask an employee to furnish information beyond that requested in the DFEH form. 182

California employers should only utilize the DFEH form –not the DOL form– for purposes of certification of entitlement to CFRA and FMLA leaves because the DFEH form does not contain a space for the health care provider to disclose the underlying medical facts or diagnosis of the serious health condition involved without the consent of the patient. 183 In this way, California employers will not receive confidential information that they are not entitled to receive.

LCW Practice Advisor

c. Certification of a Parent, Spouse, Domestic Partner or Child’s Serious Health Condition Under the CFRA , if the certification regards the serious health condition of the employee’s parent, spouse, domestic partner or child, then the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition;

 an estimate of the amount of time the health care provider believes that the employee needs to care for the parent, child, spouse or domestic partner; and  a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the parent, child, spouse or domestic partner. 184

The serious health condition of a parent, spouse, domestic partner or child “warrants the participation of the employee” when the employee is needed to provide psychological comfort, to arrange third party care or to provide or participate in the provision of medical care. 185

Under the FMLA , the certification should contain the same information. 186 Note that domestic partners are not covered under the FMLA.

d. Recertification Under the CFRA , the employer may require that the employee obtain subsequent recertification regarding the employee’s serious health condition if additional leave is required. 187 Furthermore, upon the expiration of the time estimated by the health care provider to be necessary for the care of a parent, spouse, domestic partner or child, the employer may require the employee to obtain recertification. 188

Under the FMLA , recertification may be required on a “reasonable basis.” According to federal regulations, unless “the employer receives information that casts doubt upon the employee’s

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 61