Privacy Issues in the Community College Workplace

the behavior, 5) the supervisor must keep records of all suspected behavior and 6) the employee must be returned to work if he or she is found to be “fit.” The court upheld the policy in finding no constitutional violations or evidence that the testing was a condition of employment.

4. W HAT I NFORMATION I S AN E MPLOYER E NTITLED TO R ECEIVE F OLLOWING A F ITNESS FOR D UTY E XAMINATION ? Under the Confidentiality in Medical Information Act (CMIA), unless written authorization is received from an employee, an employer is only entitled to know whether the employee can perform the essential functions of the job. The employer cannot be advised of the medical cause of an employee’s inability to perform. 213 If an employee requires a reasonable accommodation or is otherwise unable to perform the essential functions of the job, the employer is entitled to know the functional limitations on the employee’s ability to perform the job (e.g., the employee cannot stand for extended periods of time; the employee cannot lift objects weighing more than 25 pounds). 214 If there is any doubt, an employer should not be afraid to seek clarification from the examiner concerning what an employee can and cannot do. Appendix S of this workbook provides a sample letter to a medical doctor for a fitness for duty examination. 5. W HAT I NFORMATION C AN THE E MPLOYER G IVE A D OCTOR ? Unless a health care professional is regularly called upon to treat a specific group of employees (e.g., a police department may regularly send officers to a particular physician for fitness for duty examinations), he or she may not have the requisite knowledge of a position to know what the essential functions of the job are, let alone make a determination that an employee can or cannot perform those functions. The solution to this problem is simple. Nothing in the law prohibits an employer from providing a health care provider with a detailed job description, or even an opportunity to visit the job site to see how the job is performed. I. C AN THE D OCTOR H AVE AN E MPLOYEE ’ S P RIOR M EDICAL R ECORDS ? In some instances a health care provider will indicate that he or she needs to review the employee’s prior medical records to conduct an effective fitness for duty examination. Under the CMIA, the health care provider cannot have the records unless the employee authorizes the release except under certain limited conditions. 215

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 67