Privacy Issues in the Workplace

Fritsch v. City of Chula Vista 221 A city attorney was properly required to undergo a psychiatric evaluation after she appeared visibly shaken, was hyperventilating and in a state of frenzy while in court. The supervisor relayed these observations to a consulting psychiatrist who confirmed the need for the evaluation. The attorney challenged the examination in court. The court upheld the employer’s need to conduct a fitness for duty examination based on “the information available to the employer about the severity of the outburst and his personal observations of the attorney's demeanor when she reported the incident; the staff psychiatrist's recommendation that the employee immediately take a fitness-for-duty evaluation; and the high level of fortitude and professionalism required of litigation attorneys.” Jermon v. County of Sonoma 222 A janitor came to work and locked himself in the employee break room. After discovering him, his supervisors ordered him to take a fitness for duty examination for drug or alcohol abuse. The employee brought suit challenging the county’s policy. The county’s fitness for duty drug and alcohol policy required the following procedures: 1) the employee exhibit at least two conditions commonly associated with substance abuse, 2) the supervisor check with their manager prior to testing, 3) the supervisor talk with the employee regarding their behavior, 4) the supervisor speak with medical staff regarding 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. 223 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). 224 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.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 69