An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

An employer may not require a medical examination to determine whether an employee is disabled unless such examination is shown to be job-related and consistent with business necessity. 1475 Although the business necessity standard is high, it can be met even before an employee’s work performance declines if there is significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his or her job. An employee’s behavior cannot be merely annoying or inefficient to justify an examination. There must be genuine reason to doubt whether that employee can perform job-related functions. This test is more likely to be met when an employee performs dangerous or public safety work. 1476 A school should not request an employee undergo a fitness for duty examination unless it has specific evidence: 1) that the employee has difficulty performing one or more essential functions of his or her job; or 2) of other good cause (i.e., excessive absenteeism, poor productivity). If a school has a sufficient basis upon which to require a fitness for duty examination, it may compel an employee to submit to an examination before allowing the employee to return to the workplace. 1477 2. W HAT I NFORMATION I S A N E MPLOYER E NTITLED T O R ECEIVE F OLLOWING A F ITNESS F OR D UTY E XAMINATION ? Under the Confidentiality in Medical Information Act (“CMIA”), unless written authorization is received from an employee, an employer is entitled to know only 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. 1478 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 1479 ). 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. a. Health Insurance Portability And Accounting Act (“HIPAA”) Information received by an employer as a result of a fitness-for-duty exam is likely not covered by HIPAA. When the Department of Health and Human Services implemented the HIPAA Privacy Regulations, it noted that certain medical records maintained by an employer - in its role as an employer - were not subject to the HIPAA regulations. Those medical records include:

“…[M]edical information needed for an employer to carry out its obligations under FMLA, ADA, and similar laws as well as files or records related to occupational injury, disability insurance eligibility, sick leave requests and justifications, drug screening results, workplace medical surveillance, and fitness- for-duty tests of employees.” 1480

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