Privacy Issues in the Workplace

NOTE : SB 1421 does not explicitly state whether it applies to records created before the new law’s effective date. Several police labor organizations have taken the position that SB 1421 was not intended to apply retroactively to records that are in an agency’s possession but were created before January 1, 2019. This question is the subject of multiple parallel lawsuits across the state. Rulings have come in from three superior courts: Contra Costa Superior Court denied six police unions’ petitions to limit SB 1421 disclosures to records created after January 1; Ventura County Superior Court issued a preliminary injunction that prevents the County from releasing records of pre-2019 incidents, and Los Angeles County Superior Court concluded that there was no legislative intent to preclude pre-2019 records. As each of these rulings come from the Superior Courts, they are not binding except for the parties to each case. LCW has a designated team of attorneys closely following developments in the new law and we will continue to post updates on our blog as they occur. This law will likely remain unsettled until there is a ruling from either a Court of Appeal of the California Supreme Court. AB 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury , in response to CPRA requests. These statutes have different timelines for production of records, and different circumstances under which production of records can be delayed or records can be withheld. Further, agencies may wish to evaluate their document retention policies in light of these new disclosure requirements. Agencies should work closely with trusted legal counsel to ensure compliance with both statutes. e. Inquiries by Prospective Employers Under the CMIA, written authorization from the employee is required before medical information could be disclosed to a prospective employer. In light of the legal restrictions placed upon the acquisition of medical information concerning prospective employees, an employer should be wary of such requests. Thus, in the absence of written authorization, medical information should not be provided. Assembly Bill 748

3. C ASE S TUDIES I NVOLVING D ISCLOSURE OF M EDICAL I NFORMATION Garrett v. Young 257

A patient sought medical treatment for a rash, sleeplessness, weight loss, and complained of stress. The doctor diagnosed her with severe depression, referred her to a psychiatrist, and sent “return-to-work” documents to her employer. After inquiry from the employer, the doctor indicated that the patient suffered from itching and stress. The doctor did not discuss any diagnostic tests nor did he reveal the psychiatric referral. After discovering that the doctor had

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 78