An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

As a result, even if an employer is a covered entity under the HIPAA regulations, its use of medical information for work-related purposes probably will not result in a HIPAA violation. The CMIA, however, might still apply. Nonetheless, doctors who conduct the fitness-for-duty exam, and who are covered by HIPAA,

may require a HIPAA-compliant authorization from the employee. b. What Information Can The Employer Give A Doctor?

Unless a health care professional is regularly called upon to treat a specific group of employees (e.g., a school might regularly send security guards to a particular physician for fitness for duty examinations), he or she may not have the requisite knowledge of a position to know the essential functions of the job, let alone to 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. c. Can The Doctor Have An Employee’s Prior Medical Records? 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. 1481 Civil Code § 56.20(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 need not provide leave, accommodations, or other benefits. d. What Happens If The Employee Is Found Not Fit For Duty? There is no simple answer to this question: the answer depends upon the circumstances of each individual case. However, there are issues which should be considered in every case.

 Is the employee disabled? If the examiner has not indicated whether the employee is disabled (i.e., the employee is limited in one or more major life activities), the employer should follow up with the examiner on this issue and get an answer to that question.  If the employee is disabled, are there any reasonable accommodations that would enable the employee to perform the essential functions of his or her job? If reasonable accommodations exist, then the employer owes a duty

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