Privacy Issues in the Community College Workplace

stated reason for the absence” or “circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications),” it is unreasonable to request recertification more often than every 30 days (or, if the length of leave specified in the original certification was greater than 30 days, prior to the expiration of the original leave). 189 e. Getting a Second Opinion Under both the FMLA and CFRA, if an employer doubts the validity of a certification provided by an employee, the employer may require, at the employer’s expense, that the employee obtain the opinion of a second health care provider of the employer’s choosing. 190

Please note: The health care provider may not be employed by the employer (e.g., a county should not send an employee to its own health department to get a second opinion). 191 If the second opinion differs from the first opinion, the employer may require, again at the employer’s expense, that the employee obtain an opinion from a third health care provider designated or jointly approved by the employer and the employee. 192

The third opinion is binding on the employer and the employee. 193

f. Certification of an Employee’s Ability to Return to Work Absent a contrary position in a memorandum of understanding (or collective bargaining agreement), an employer may have a uniformly applied practice or policy that requires an employee to obtain certification from his or her health care provider that the employee is able to resume work if the employee is returning from leave taken as a result of his or her own serious health condition. 194 State law allows an employer to condition an employee’s return to work from his or her own serious health condition upon a return to work certification only if the employer has a uniformly applied practice or policy of requiring such releases from all employees who return to work from illness, injury or disability. 195

While an employer may request certification of an employee’s ability to return to work, the employer may not condition return to duty upon a certification that the employee can return to work without any restrictions. To do so would violate the duty of reasonable accommodation under the ADA and the FEHA.

LCW Practice Advisor

3. C ERTIFICATION OF E NTITLEMENT TO P REGNANCY L EAVE An employer may require medical certifications before permitting employees to take a leave of absence under the PDL, or to transfer to a different position because of pregnancy, childbirth or other related medical conditions, if it requires certification of other similarly situated employees, i.e., other employees seeking leave for medical reasons. 196

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