Privacy Issues in the Community College Workplace

b. Certification of an Employee’s Own Serious Health Condition Under the CFRA , if the certification pertains to the employee’s own serious health condition, the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition; and

 a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform the function of his/her position. 182

Under the FMLA , essentially the same information is required. However, under the FMLA, the employer is entitled to know the medical facts which support the certification. 183 An employer cannot ask an employee to furnish information beyond that requested in the DFEH form. 184

California employers should only utilize the DFEH form –not the DOL form– for purposes of certification of entitlement to CFRA and FMLA leaves because the DFEH form does not contain a space for the health care provider to disclose the underlying medical facts or diagnosis of the serious health condition involved without the consent of the patient. 185 In this way, California employers will not receive confidential information that they are not entitled to receive.

LCW Practice Advisor

c. Certification of a Parent, Spouse, Domestic Partner or Child’s Serious Health Condition Under the CFRA , if the certification regards the serious health condition of the employee’s parent, spouse, domestic partner or child, then the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition;

 an estimate of the amount of time the health care provider believes that the employee needs to care for the parent, child, spouse or domestic partner; and  a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the parent, child, spouse or domestic partner. 186

The serious health condition of a parent, spouse, domestic partner or child “warrants the participation of the employee” when the employee is needed to provide psychological comfort, to arrange third party care or to provide or participate in the provision of medical care. 187

Under the FMLA , the certification should contain the same information. 188 Note that domestic partners are not covered under the FMLA.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 61