Principles for Public Safety Employment

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. E. 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. 318 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. Moreover, an employer may not be able to return an employee to work without a definitive determination on his/her fitness for duty. F. W HAT H APPENS IF A P UBLIC S AFETY E MPLOYEE IS F OUND N OT F IT FOR D UTY ? There is no simple answer to this question ─ the answer truly depends upon the circumstances of each individual case. However, there are issues which should be considered in every case.

 Is the public safety 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.  If the public safety employee is disabled, are there any reasonable accommodations which would enable the employee to perform the essential functions of his or her job? If reasonable accommodations exist, then the employer owes a duty under the ADA and the FEHA to accommodate the employee. The FEHA separately mandates that an employer respond in a timely and good faith manner to an employee or applicant’s request for a reasonable accommodation. 319 A recent Court of Appeal case held that it was not disability discrimination in violation of the FEHA to demote a peace officer who had become unable to perform the essential functions of a peace officer to a non-peace officer analyst position. 320 Again, the employer

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