Privacy Issues in the Community College Workplace

1. R EQUESTS FOR R EASONABLE A CCOMMODATION Under both the FEHA 169 and the ADA, an employer must make reasonable accommodation for a qualified employee with a disability. 170 Accordingly, an employer may make limited inquiries to verify an employee’s need for a reasonable accommodation. Under the ADA , an employer may require an employee to undergo a medical examination if the employee requests a reasonable accommodation. According to the EEOC, when an employee requests a reasonable accommodation (and his or her disability is not obvious) an employer may request “reasonable documentation” concerning the employee’s alleged disability. 171 Under the FEHA , an employer may request an employee to submit to a physical examination if the request is directly related to the ability of the employee to perform his or her job and a business necessity. 172 Thus, an employer could require an employee to undergo a physical examination if the employee requests a reasonable accommodation. a. What Does “Reasonable Documentation” Mean? Under the ADA, “reasonable documentation” means that the employer may require only the documentation needed to establish that a person is disabled and that the disability necessitates a reasonable accommodation. In response to a request for reasonable accommodation, an employer cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity of an accommodation. In most situations an employer cannot request a person’s complete medical record because it is likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. There is no California regulation or statute which directly addresses this question in the context of the FEHA . However, under the CMIA (discussed at greater length below), an employer would be entitled to the same information (i.e., certification that the employee is disabled and information concerning any reasonable accommodation that may be required). Under the CMIA the employer is only entitled to information describing the functional limitations of the employee that may entitle the employee to leave or limit the employee’s fitness to perform his or her present employment. No statement of medical cause should be included in the information disclosed. 173 b. Choosing a Doctor Under the ADA, an employer may require an employee to go to an appropriate health professional of the employer’s choice if the employee provides insufficient information from his/her treating physician to substantiate that he/she has a disability and needs a reasonable accommodation. However, the EEOC recommends that an employer give an employee an opportunity to provide additional information that may be needed before sending the employee to a physician of the employer’s choosing . 174

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 59