Privacy Issues in the Workplace

without the consent of the patient. 193 In this way, California employers will not receive confidential information that they are not entitled to receive.

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. 194

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. 195 Under the FMLA , the certification should contain the same information. 196 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. 197 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. 198 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 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). 199 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. 200

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 64