Privacy Issues in the Workplace

However, the court ruled in favor of UPS because UPS had demonstrated that the employees would “endanger the health or safety of others to a greater extent than if an individual without a disability performed the job” and, thus, had satisfied FEHA’s safety-of-others defense. The court noted that even a modest increase in the risk that a problem will occur is significant when the potential consequences of that problem are very serious. The court also emphasized that peripheral vision plays an important role in avoiding accidents and that the monocular driver has less opportunity to see a child or any other pedestrian or cyclist or car darting from the impaired side. Finally, the court held that UPS demonstrated that decreased peripheral vision compromises a driver’s ability to perform as safely as compared to a person without that impairment. Present and former employees, who, as applicants, submitted to a medical examination following a conditional offer, brought suit alleging a violation of the ADA and the right to privacy under the United States and the California Constitutions alleging that the tests performed were neither job-related nor required by business necessity. In the course of the pre-employment physical examinations, the applicants completed medical history questionnaires and provided blood and urine samples. The questionnaires asked, among other things, whether they had ever had any one of approximately 61 medical conditions including, but not limited to, sickle cell anemia, venereal disease and, in the case of women, menstrual disorders. In addition, the blood and urine samples were tested for syphilis. Blood samples provided by African-American applicants were also tested for sickle cell trait and blood samples provided by female applicants were tested for pregnancy. The applicants and employees alleged that the testing for syphilis, sickle cell trait, and pregnancy occurred without their knowledge or consent, and without any subsequent notification that the tests had been conducted. The Ninth Circuit found for the applicants as to their constitutional claims in ruling that that the scope of the physical extended beyond the reasonable expectations of an occupational health exam, as the employer tested for intimate medical conditions bearing no relationship to their job duties or working conditions as clerical employees.

3. C ASE S TUDY ON P RE -E MPLOYMENT M EDICAL E XAMINATIONS Norman-Bloodsaw v. Lawrence Berkeley Laboratories 176

G. C URRENT E MPLOYEES The general rule is that an employer may not inquire about a current employee’s medical condition or require a current employee to undergo a medical examination. 177 There are, however, several very important exceptions to this rule, such as fitness for duty examinations (discussed in Section 3), and an employee’s request for a reasonable accommodation.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 62