Privacy Issues in the Workplace

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. 225

Civil Code section 56.20, subdivision (b), provides that:

“No employee shall be discriminated against in terms or conditions of employment due to that employee’s refusal to sign an authorization under this part. However, nothing in this section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee’s refusal to sign an authorization under this part.”

For example, if an applicant refuses to sign the authorization, the employer need not process the application. Likewise, if an employee refuses, the employer may discipline the employee for his or her performance.

J. H ANDLING AND M AINTENANCE OF E MPLOYEE M EDICAL I NFORMATION Employee medical and psychological information is understandably accorded greater protection than many other types of employee information. 1. R EQUIREMENTS R EGARDING E MPLOYEE M EDICAL F ILE California law requires an employer, including a public employer, who receives medical information to establish appropriate procedures to ensure the confidentiality and protection from

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