Privacy Issues in the Workplace

A fitness for duty examination or inquiry into a request for reasonable accommodation must be job-related and consistent with business necessity. 178

LCW Practice Advisor

1. R EQUESTS FOR R EASONABLE A CCOMMODATION Under both the FEHA 179 and the ADA, an employer must make reasonable accommodation for a qualified employee with a disability. 180 Accordingly, an employer may make limited inquiries to verify an employee’s need for a reasonable accommodation. Under the ADA , an employer may require an employee to undergo a medical examination if the employee requests a reasonable accommodation. According to the EEOC, when an employee requests a reasonable accommodation (and his or her disability is not obvious) an employer may request “reasonable documentation” concerning the employee’s alleged disability. 181 Under the FEHA , an employer may request an employee to submit to a physical examination if the request is directly related to the ability of the employee to perform his or her job and a business necessity. 182 Thus, an employer could require an employee to undergo a physical examination if the employee requests a reasonable accommodation. a. What Does “Reasonable Documentation” Mean? Under the ADA, “reasonable documentation” means that the employer may require only the documentation needed to establish that a person is disabled and that the disability necessitates a reasonable accommodation. In response to a request for reasonable accommodation, an employer cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity of an accommodation. In most situations an employer cannot request a person’s complete medical record because it is likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. There is no California regulation or statute which directly addresses this question in the context of the FEHA . However, under the CMIA (discussed at greater length below), an employer would be entitled to the same information (i.e., certification that the employee is disabled and information concerning any reasonable accommodation that may be required). Under the CMIA the employer is only entitled to information describing the functional limitations of the employee that may entitle the employee to leave or limit the employee’s fitness to perform his or her present employment. No statement of medical cause should be included in the information disclosed. 183

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