Privacy Issues in the Workplace

employee has difficulty performing one or more essential functions of his or her job; or 2) of other good cause (i.e., excessive absenteeism, poor productivity).

2. W HEN I S A F ITNESS FOR D UTY E XAMINATION R EQUIRED ? In limited circumstances, the law may even mandate fitness for duty examinations. Indeed, the EEOC’s Interpretive Guidance recognizes that the ADA permits periodic physicals to determine fitness for duty or other medical monitoring if such physicals or monitoring are required by medical standards or requirements established by federal, state, or local law.

Examples

 OSHA requires that employees exposed to certain hazardous substances be periodically monitored. 217  OSHA requires that employees who wear respirators must undergo a medical examination to ensure that the employee may safely wear a respirator. 218

 Mandated drug testing for employees who operate commercial vehicles. 219

 California Government Code section 1031(f) requires that peace officers be free from any physical, mental or emotional condition that might adversely affect their exercise of peace officer powers.

3. C ASE S TUDIES ON F ITNESS FOR D UTY E XAMINATIONS Yin v. State of California 220

A state tax auditor with a five-year history of egregious absenteeism and on-the- job illnesses sued California to enjoin the state from requiring her to undergo a fitness for duty medical examination. After years of excessive absenteeism, the supervisor requested to see a copy of the employee’s medical records. When she refused, she was asked to submit to an independent medical examination. The employee retained a lawyer and the state dropped its request. However, the absences continued and the state again demanded an independent medical examination. The employee then filed suit. The Ninth Circuit Court of Appeals upheld the employer’s right to require a medical examination where the exam was job-related and the record clearly indicated good cause for trying to determine whether she was able to perform her job in light of missing an excessive number of workdays. The employee’s excessive absenteeism had seriously impacted her productivity and overall job performance. In this case, Yin’s expectation of privacy was diminished and requiring her to undergo a fitness-for-duty examination would clearly further the state’s interest in assuring a productive and stable work force.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 68