Privacy Issues in the Workplace

4. W ORKERS ’ C OMPENSATION This workbook is not intended to address workers’ compensation issues. However, employers should be aware of some of the restrictions on the acquisition of medical information that exist in that context.

An employer generally may not receive medical information from an insurer about an employee who files a workers’ compensation claim:

“An insurer, third party administrator retained by a self-insured employer…and those employees and agents specified by a self- insured employer to administer the employer’s workers’ compensation claims, are prohibited from disclosing or causing to be disclosed to an employer, any medical information, as defined in subdivision (b) of Section 56.05 of the Civil Code, about an employee who has filed a workers’ compensation claim, except as follows: (1) Medical information limited to the diagnosis of the mental or physical condition for which workers’ compensation is claimed and the treatment provided for this condition (2) Medical information regarding the injury for which workers’ compensation is claimed that is necessary for the employer to have in order for the employer to modify the employee’s work duties.” 213

5. D RUG T ESTING OF C URRENT E MPLOYEES The ADA does not encourage, prohibit, or authorize testing for the illegal use of drugs or making employment decisions based on such test results. The FEHA does not address drug testing. However, the ability of public employers to test for illegal drug usage is limited by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, and by an employee’s right to privacy. Please refer to Section 4 for a detailed discussion concerning the circumstances under which a government employer may require a drug test. H. F ITNESS FOR D UTY E XAMINATIONS This section outlines the authority of an employer to require a current employee to undergo medical and/or psychological examinations for purposes of determining the employee’s “fitness for duty.” Under the ADA and the FEHA , an employer may require an employee to undergo a medical examination (and/or inquiry) if it is job-related and consistent with business necessity. 214 According to the Interpretive Guidance issued by the EEOC, the above rule permits employers to require a fitness for duty exam, when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 215

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 68