Privacy Issues in the Workplace

Please note : The health care provider may not be employed by the employer (e.g., a county should not send an employee to its own health department to get a second opinion 201 ). If the second opinion differs from the first opinion, the employer may require, again at the employer’s expense, that the employee obtain an opinion from a third health care provider designated or jointly approved by the employer and the employee. 202

The third opinion is binding on the employer and the employee. 203

f. Certification of an Employee’s Ability to Return to Work Absent a contrary position in a memorandum of understanding (or collective bargaining agreement), an employer may have a uniformly applied practice or policy that requires an employee to obtain certification from his or her health care provider that the employee is able to resume work if the employee is returning from leave taken as a result of his or her own serious health condition. 204 State law allows an employer to condition an employee’s return to work from his or her own serious health condition upon a return to work certification only if the employer has a uniformly applied practice or policy of requiring such releases from all employees who return to work from illness, injury or disability. 205

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 as a condition for 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. The employer “must notify the employee of the need to provide medical certification; the deadline for providing the certification; what constitutes sufficient medical certification; and the consequences of failing to provide medical certification.” 206

A certification indicating a disability that necessitates the leave 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. 207

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 65