Privacy Issues in the Community College Workplace

While an employer may request certification of an employee’s ability to return to work, the employer may not condition return to duty upon a certification that the employee can return to work without any restrictions. To do so would violate the duty of reasonable accommodation under the ADA and the FEHA.

LCW Practice Advisor

3. C ERTIFICATION OF E NTITLEMENT TO P REGNANCY L EAVE An employer may require medical certifications before permitting employees to take a leave of absence under the PDL, or to transfer to a different position because of pregnancy, childbirth or other related medical conditions, if it requires certification of other similarly situated employees, i.e., other employees seeking leave for medical reasons. 198 The certification should include the following information, and nothing else:

 The date on which the employee became disabled due to pregnancy, childbirth, or related medical conditions;

 The probable duration of the period or periods of disability; and

 An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons. 199

If the certification contains the above information, the employer must accept it as sufficient . 200

An employer may also require an employee returning to work from pregnancy disability leave to obtain a release to return to work stating that the employee is able to resume her original job duties. However, the employer may only require a release if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave. 201 4. W ORKERS ’ C OMPENSATION This workbook is not intended to address workers’ compensation issues. However, employers should be aware of some of the restrictions on the acquisition of medical information that exist in that context.

An employer generally may not receive medical information from an insurer about an employee who files a workers’ compensation claim:

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 63