Privacy Issues in the Workplace

A certification indicating the medical advisability of the transfer should include the following information, and nothing else:

 The date on which the need to transfer became medically advisable;

 The probable duration of the period or periods of the need to transfer; and

 An explanatory statement that, due to the woman’s pregnancy, the transfer is medically advisable. 208

If the certification contains the above information, the employer must accept it as sufficient . 209

An employer may also require an employee returning to work from pregnancy disability leave to obtain a release to return to work stating that the employee is able to resume her original job duties. However, the employer may only require a release if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave. 210 4. W ORKERS ’ C OMPENSATION This workbook is not intended to address workers’ compensation issues. However, employers should be aware of some of the restrictions on the acquisition of medical information that exist in that context.

An employer generally may not receive medical information from an insurer about an employee who files a workers’ compensation claim:

“An insurer, third party administrator retained by a self-insured employer…and those employees and agents specified by a self- insured employer to administer the employer’s workers’ compensation claims, are prohibited from disclosing or causing to be disclosed to an employer, any medical information, as defined in subdivision (b) of Section 56.05 of the Civil Code, about an employee who has filed a workers’ compensation claim, except as follows: (1) Medical information limited to the diagnosis of the mental or physical condition for which workers’ compensation is claimed and the treatment provided for this condition (2) Medical information regarding the injury for which workers’ compensation is claimed that is necessary for the employer to have in order for the employer to modify the employee’s work duties.” 211

5. D RUG T ESTING OF C URRENT E MPLOYEES The ADA does not encourage, prohibit, or authorize testing for the illegal use of drugs or making employment decisions based on such test results. The FEHA does not address drug testing. However, the ability of public employers to test for illegal drug usage is limited by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, and by

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