Privacy Issues in the Workplace

I. C AN THE D OCTOR H AVE AN E MPLOYEE ’ S P RIOR M EDICAL R ECORDS ? In some instances a health care provider will indicate that he or she needs to review the employee’s prior medical records to conduct an effective fitness for duty examination. Under the CMIA, the health care provider cannot have the records unless the employee authorizes the release except under certain limited conditions. 227

Civil Code section 56.20, subdivision (b), provides that:

“No employee shall be discriminated against in terms or conditions of employment due to that employee’s refusal to sign an authorization under this part. However, nothing in this section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee’s refusal to sign an authorization under this part.”

For example, if an applicant refuses to sign the authorization, the employer need not process the application. Likewise, if an employee refuses, the employer may discipline the employee for his or her performance.

J. H ANDLING AND M AINTENANCE OF E MPLOYEE M EDICAL I NFORMATION Employee medical and psychological information is understandably accorded greater protection than many other types of employee information. 1. R EQUIREMENTS R EGARDING E MPLOYEE M EDICAL F ILE California law requires an employer, including a public employer, who receives medical information to establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information. 228 This includes any information regarding an individual’s mental condition. 229 The procedures must include, but need not be limited to, instructing employees and agents on properly handling files containing medical information to protect the confidentiality of the information. 230 The Americans with Disabilities Act (ADA), 231 also requires that information obtained regarding the medical condition or history of an employment applicant be kept confidential with few exceptions. The ADA further requires that information from medical examinations or inquiries be placed in a separate file and not placed in an employee’s general personnel file. 232

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 72