Privacy Issues in the Community College Workplace

 administering and maintaining employee benefit plans, including health care plans and plans providing short-term and long-term disability income, and workers’ compensation; or  when the employee is incapacitated and the information is necessary to aid the treatment or diagnosis of the employee (See section 5 and 6).

The following are some specific types of requests for medical information that employers might receive.

1. E MPLOYEE R EQUESTS

California Labor Code section 1198.5 gives employees the right to inspect their personnel files.

Government Code section 3306.5 gives public safety officers the right to inspect their personnel files.

California Government Code section 31011 gives county employees the right to inspect their files.

Education Code section 87031 gives employees of community college districts the right to inspect their personnel files pursuant to California Labor Code section 1189.5.

Under CalOSHA, it appears that whenever an employee who is exposed to toxic or harmful substances requests access to medical or “exposure” records, the employer shall assure that access is provided in a reasonable time, place and manner, but in no event later than 15 days after the request for access is made. 232

2. R ESPONDING TO S UBPOENAS

a. State Tribunals With the exception of workers’ compensation proceedings, California law requires that consumers and employees be given notice and an opportunity to object if certain records about them, including but not limited to medical and employment records, are subpoenaed. 233 A party subpoenaing medical records must notify the consumer whose records are being sought at least 5 days prior to service of the subpoena upon the records custodian. Additionally, the notice to the consumer must be served on the consumer at least 10 days prior to the date of production. 234 The party subpoenaing records must also serve the responding party (i.e., the employer) with proof that the employee has been given notice of the subpoena. Unless the employer receives proof that the employee has been properly notified at least five days prior to service of the subpoena on the employer, the employer should not produce any records.

An employer may also contest a subpoena, by filing a motion to quash the subpoena.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 73