Privacy Issues in the Workplace

a. What Does “Reasonable Documentation” Mean? Under the ADA, “reasonable documentation” means that the employer may require only the documentation needed to establish that a person is disabled and that the disability necessitates a reasonable accommodation. In response to a request for reasonable accommodation, an employer cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity of an accommodation. In most situations an employer cannot request a person’s complete medical record because it is likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. There is no California regulation or statute which directly addresses this question in the context of the FEHA . However, under the CMIA (discussed at greater length below), an employer would be entitled to the same information (i.e., certification that the employee is disabled and information concerning any reasonable accommodation that may be required). Under the CMIA the employer is only entitled to information describing the functional limitations of the employee that may entitle the employee to leave or limit the employee’s fitness to perform his or her present employment. No statement of medical cause should be included in the information disclosed. 182 b. Choosing a Doctor Under the ADA, an employer may require an employee to go to an appropriate health professional of the employer’s choice if the employee provides insufficient information from his/her treating physician to substantiate that he/she has a disability and needs a reasonable accommodation. However, the EEOC recommends that an employer give an employee an opportunity to provide additional information that may be needed before sending the employee to a physician of the employer’s choosing . 183 c. Obvious Disabilities If an employee’s disability is obvious, then the employer may not require the employee to obtain medical certification of the disability. But, the employer may still request certification that the employee’s disability does not pose a risk to himself or herself or other employees. d. A Promotional Candidate Is Treated as an Applicant According to guidance provided by the EEOC, an employer should treat an employee who applies for a new job within the agency as an applicant. The employer, therefore, is prohibited from asking disability-related questions or requiring a medical examination before making the individual a conditional offer. Moreover, any medical examination required for a promotion would have to be job-related and consistent with business necessity. Unless the position involves significantly different duties than the applicant's current position, an employer will have a hard time justifying the business necessity of a promotional medical examination. Note also Documentation from an employee is considered insufficient if it does not specify the existence of an ADA disability and/or explain the need for reasonable accommodation. 184

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 62