Privacy Issues in the Workplace

This is an area where California law is more restrictive than federal law. Under California law, any request for information or examination must be job-related and consistent with business necessity . The ADA permits more general inquiries into an applicant’s medical condition than does the FEHA. Thus, even if an employer complies with the provisions of the ADA, the employer may be violating the FEHA. Employers should be particularly careful about using standardized employment applications and questionnaires that were not created to comply with California law.

LCW Practice Advisor

2. HIV T ESTING I S I MPERMISSIBLE

California employers are generally prohibited from testing applicants and employees for HIV and from basing hiring and employment decisions on such tests. 168

E. E XISTING E MPLOYMENT S TAGE : T HOSE W HO ARE A LREADY E MPLOYED The threshold for testing individuals who are already employees is much higher. One reason is that employers have the opportunity to observe existing employees’ ability to function in their jobs, unlike applicants. 169 Thus, the general rule is that an employer may not inquire about an existing employee’s medical condition or require a current employee to undergo a medical examination. 170 However, there are two primary exceptions: 1) to carry out a legal obligation, such as determining the availability of a reasonable accommodation; and 2) for other nondiscriminatory, legitimate business reasons, such as determining an employee’s fitness for duty. Like pre-employment medical exams, exams of existing employees must also meet the job-related and consistent with business necessity requirements. 171 Appendix S of this workbook provides a sample letter to a medical doctor for a fitness for duty examination. F. D ENIAL OF E MPLOYMENT B ASED ON M EDICAL E XAMINATION R ESULTS If an employer disqualifies an applicant based on a medical examination, the employer must show that: 1) the reasons for disqualification were job-related and consistent with business necessity; and 2) no reasonable accommodation was available. 172 (See Section G1 regarding Reasonable Accommodation). An employer must engage in an interactive reasonable accommodation discussion to determine if a reasonable accommodation exists. If the results of a medical examination result in disqualification, an applicant may submit an independent medical opinion for consideration before a final determination on disqualification is made. 173

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 60