Privacy Issues in the Workplace

that an individual is not an applicant where he or she is noncompetitively entitled to another position with the same employer (i.e., because of seniority or satisfactory performance in his or her current position). Likewise, an employee who is temporarily assigned to another position and then returns to his or her position is not an applicant. 185

Finally, an employer generally will not be able to conduct a suspicionless drug test on an employee who seeks a promotion, absent a unique requirement in the new position. 186

2. R EQUESTS FOR M EDICAL L EAVE UNDER T HE FMLA AND CFRA Under both the FMLA and CFRA, an employer may request medical certification for purposes of establishing an employee’s entitlement to a medical leave as a result of the serious health condition of an employee or an employee’s child, spouse, or parent. 187 As of January 1, 2005, domestic partners are also covered by the CFRA but not by the FMLA.

Certification is defined as a written communication to the employer from the health care provider of the employee or the employee’s child, parent, domestic partner or spouse. 188

a. What Is a Serious Health Condition? A serious health condition means a physical or mental condition that involves either:

 inpatient care in a hospital, hospice, or residential health care facility; or

 continuing treatment or continuing supervision by a health care provider. 189

b. Certification of an Employee’s Own Serious Health Condition Under the CFRA, if the certification pertains to the employee’s own serious health condition, the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition; and

 a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform the function of his/her position. 190

Under the FMLA, essentially the same information is required. However, under the FMLA, the employer is entitled to know the medical facts which support the certification. 191 An employer cannot ask an employee to furnish information beyond that requested in the DFEH form. 192

California employers should only utilize the DFEH form –not the DOL form– for purposes of certification of entitlement to CFRA and FMLA leaves because the DFEH form does not contain a space for the health care provider to disclose the underlying medical facts or diagnosis of the serious health condition involved

LCW Practice Advisor

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 63