Privacy Issues in the Workplace

access is provided in a reasonable time, place and manner, but in no event later than 15 days after the request for access is made. 246

2. R ESPONDING TO S UBPOENAS

a. State Tribunals With the exception of workers’ compensation proceedings, California law requires that consumers and employees be given notice and an opportunity to object if certain records about them, including but not limited to medical and employment records, are subpoenaed. 247 A party subpoenaing medical records must notify the consumer whose records are being sought at least five days prior to service of the subpoena upon the records custodian. Additionally, the notice to the consumer must be served on the consumer at least 10 days prior to the date of production. 248 The party subpoenaing records must also serve the responding party (i.e., the employer) with proof that the employee has been given notice of the subpoena. Unless the employer receives proof that the employee has been properly notified at least five days prior to service of the subpoena on the employer, the employer should not produce any records. b. Federal Tribunals The Federal Rules of Civil Procedure do not impose the same notice requirements. Upon receipt of a subpoena for records, an employer must serve written objections to the subpoena on the grounds that the records are confidential within 14 days of being served with the subpoena, or prior to the date for compliance if the compliance date is less than 14 days. The objections must specify the grounds for the objections and describe the confidential records sufficiently to enable the subpoenaing party to move to compel their production. 249 Having served objections to the subpoena, the employer is not obligated to produce the records unless and until ordered to do so by the court. In the alternative, the employer may also move to quash the subpoena on the same grounds. 250 c. Public Records Request The California Public Records Act (CPRA) 251 makes a wide variety of government records available to the public. However, there are also a number of records that are not subject to disclosure such as “personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” 252 An employer may also contest a subpoena, by filing a motion to quash the subpoena.

Also, the CPRA should be interpreted in light of the CMIA which requires, as indicated above, written authorization from the patient before medical records can be released.

It is recommended therefore that medical records not be released pursuant to a public records request. Nonetheless, the party submitting the request should be notified within 10 days of the decision not to comply with the request and the reasons therefore. 253

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 76