Privacy Issues in the Workplace

a. What Is a Serious Health Condition? A serious health condition means a physical or mental condition that involves either:

 inpatient care in a hospital, hospice, or residential health care facility; or

 continuing treatment or continuing supervision by a health care provider. 191

b. Certification of an Employee’s Own Serious Health Condition Under the CFRA, if the certification pertains to the employee’s own serious health condition, the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition; and

 a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform the function of his/her position. 192

Under the FMLA, essentially the same information is required. However, under the FMLA, the employer is entitled to know the medical facts which support the certification. 193 An employer cannot ask an employee to furnish information beyond that requested in the DFEH form. 194

California employers should only utilize the DFEH form –not the DOL form– for purposes of certification of entitlement to CFRA and FMLA leaves because the DFEH form does not contain a space for the health care provider to disclose the underlying medical facts or diagnosis of the serious health condition involved without the consent of the patient. 195 In this way, California employers will not receive confidential information that they are not entitled to receive.

LCW Practice Advisor

c. Certification of a Parent, Spouse, Domestic Partner or Child’s Serious Health Condition Under the CFRA , if the certification regards the serious health condition of the employee’s parent, spouse, domestic partner or child, then the certification must contain:

 the date, if known, on which the serious health condition commenced;

 the probable duration of the condition;

 an estimate of the amount of time the health care provider believes that the employee needs to care for the parent, child, spouse or domestic partner; and  a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the parent, child, spouse or domestic partner. 196

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 65