Privacy Issues in the Workplace

Request Information Directly From the Employee or Applicant. Finally, Section 40.25 requires the employer to also ask the applicant or employee whether he or she has tested positive, or has refused to test, on any pre-employment drug or alcohol test for any safety-sensitive job applied for but not obtained during the prior two years. 302 If the individual admits that he or she has had a positive test or has refused to submit to testing, the employer must not use the individual to perform safety-sensitive functions until the individual documents successful completion of the return-to-duty process. 303 C. M AINTAINING D RUG AND A LCOHOL T EST R ESULTS For purposes of complying with privacy laws, employers should treat drug and alcohol test results and information with the same care as with the results of medical examinations. This includes strictly maintaining the confidentiality of the drug and test results and storing them in a secure place that is separate from regular personnel records. An employer has an affirmative duty to prevent disclosure of such information without the employee’s consent and therefore must establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information. For a detailed discussion of these requirements, refer to the section in this workbook pertaining to maintenance of medical information.

P ERSONNEL R ECORDS AND F ILES

S ECTION 5

 Legal snapshot: Personnel Records and Files

 Constitutional Right of Privacy, Cal. Const. art. I, § 1  The Ralph M. Brown Act (“Brown Act”), Gov. Code §§ 54950 et seq .  California Public Records Act, Gov. Code §§ 6250 et seq  Public Safety Officers’ Procedural Bill of Rights Act, Cal. Gov. Code §§ 3300 et seq.  Firefighters Procedural Bill of Rights Act, Cal. Gov. Code §§ 3250 et seq .

Applicable laws:

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Various other California statutes

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Common law torts

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All current and past employees

Who and what is protected?:

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Most personnel records and files

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 97