Privacy Issues in the Workplace

conditions including, but not limited to, sickle cell anemia, venereal disease and, in the case of women, menstrual disorders. In addition, the blood and urine samples were tested for syphilis. Blood samples provided by African-American applicants were also tested for sickle cell trait and blood samples provided by female applicants were tested for pregnancy. The applicants and employees alleged that the testing for syphilis, sickle cell trait, and pregnancy occurred without their knowledge or consent, and without any subsequent notification that the tests had been conducted. The Ninth Circuit found for the applicants as to their constitutional claims in ruling that that the scope of the physical extended beyond the reasonable expectations of an occupational health exam, as the employer tested for intimate medical conditions bearing no relationship to their job duties or working conditions as clerical employees.

G. C URRENT E MPLOYEES The general rule is that an employer may not inquire about a current employee’s medical condition or require a current employee to undergo a medical examination. 176 There are, however, several very important exceptions to this rule, such as fitness for duty examinations (discussed in Section 3), and an employee’s request for a reasonable accommodation.

A fitness for duty examination or inquiry into a request for reasonable accommodation must be job-related and consistent with business necessity. 177

LCW Practice Advisor

1. R EQUESTS FOR R EASONABLE A CCOMMODATION Under both the FEHA 178 and the ADA, an employer must make reasonable accommodation for a qualified employee with a disability. 179 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. 180 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. 181 Thus, an employer could require an employee to undergo a physical examination if the employee requests a reasonable accommodation.

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