Privacy Issues in the Workplace

 all entering employees in the same job classification are subjected to such an examination;  an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made, if the results of such medical examination would result in disqualification; and  the results are maintained on separate forms and be accorded confidentiality as medical records. 164

Under the ADA, employers are afforded wide latitude in making general inquiries about an applicant’s medical background or disability status. According to the EEOC, “[o]nce a conditional job offer is made the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that category. If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.” 165 However, under the FEHA, an employer may inquire about an applicant’s medical condition and/or require a medical examination, but may never make general inquiries into an applicant’s medical background, disability status, etc. All such inquiries and/or examinations must always be directly related to the job in question and consistent with business necessity. 166

This is an area where California law is more restrictive than federal law. Under California law, any request for information or examination must be job-related and consistent with business necessity . The ADA permits more general inquiries into an applicant’s medical condition than does the FEHA. Thus, even if an employer complies with the provisions of the ADA, the employer may be violating the FEHA. Employers should be particularly careful about using standardized employment applications and questionnaires that were not created to comply with California law.

LCW Practice Advisor

2. HIV T ESTING I S I MPERMISSIBLE

California employers are generally prohibited from testing applicants and employees for HIV and from basing hiring and employment decisions on such tests. 167

E. E XISTING E MPLOYMENT S TAGE : T HOSE W HO ARE A LREADY E MPLOYED The threshold for testing individuals who are already employees is much higher. One reason is that employers have the opportunity to observe existing employees’ ability to function in their

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