Privacy Issues in the Workplace

b. Choosing a Doctor Under the ADA, an employer may require an employee to go to an appropriate health professional of the employer’s choice if the employee provides insufficient information from his/her treating physician to substantiate that he/she has a disability and needs a reasonable accommodation. However, the EEOC recommends that an employer give an employee an opportunity to provide additional information that may be needed before sending the employee to a physician of the employer’s choosing . 184

Documentation from an employee is considered insufficient if it does not specify the existence of an ADA disability and/or explain the need for reasonable accommodation. 185

c. Obvious Disabilities If an employee’s disability is obvious, then the employer may not require the employee to obtain medical certification of the disability. But, the employer may still request certification that the employee’s disability does not pose a risk to himself or herself or other employees. d. A Promotional Candidate Is Treated as an Applicant According to guidance provided by the EEOC, an employer should treat an employee who applies for a new job within the agency as an applicant. The employer, therefore, is prohibited from asking disability-related questions or requiring a medical examination before making the individual a conditional offer. Moreover, any medical examination required for a promotion would have to be job-related and consistent with business necessity. Unless the position involves significantly different duties than the applicant's current position, an employer will have a hard time justifying the business necessity of a promotional medical examination. Note also 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. 186

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. 187

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. 188 The FMLA recognizes spouses as individuals in either same sex or common law marriages. 189 Effective January 1, 2020, registered domestic partners can be any couples, regardless of their sex. 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. 190

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