Privacy Issues in the Workplace

10. C ALIFORNIA L ABOR C ODE S ECTION 3762 Section 3762 is applicable in workers’ compensation proceedings. With limited exceptions, it prohibits a workers’ compensation insurer, third party administrator or employee of a self-insured employer charged with administering workers’ compensation claims from disclosing any medical information to an employer about an employee who has filed a workers’ compensation claim. 11. G ENETIC I NFORMATION N ONDISCRIMINATION A CT OF 2008 This law, codified at 42 U.S.C. section 2000ff-1(a), makes it an unlawful employment practice for an employer (employment agency, labor organization, or training program) to fail or refuse to hire, or to discharge, any employee, or to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because of genetic information regarding the employee or to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as because of genetic information of the employer. Genetic information consists of: Information about an employee’s genetic tests or those of the employee’s family member; or the manifestation of a disease or disorder in the employee’s family members. Information about the sex or age of an individual is not considered genetic information. Medical Information That is Not Genetic Information: It shall not be a violation of this law to use, acquire, or disclose medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee including a manifested disease, disease, disorder or pathological condition that may or may not have a genetic basis. IT IS ALSO AN UNLAWFUL PRACTICE FOR AN EMPLOYER TO REQUEST, REQUIRE, OR PURCHASE GENETIC INFORMATION WITH RESPECT TO AN EMPLOYEE OR AN EMPLOYEE’S FAMILY MEMBER, EXCEPT WHERE:

 the information was requested inadvertently;

 health services or genetic services are offered by the employer, including as part of a wellness program;

 the employee provides a prior knowing voluntary written authorization;

 an employer requests family medical history from the employee to comply with FMLA or applicable state laws;  the information is publicly available (but not medical databases or court records);  the information is to monitor the biological effects of toxic substances in the workplace; or

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