Privacy Issues in the Workplace

While an employer may request certification of an employee’s ability to return to work, the employer may not condition return to duty upon a certification that the employee can return to work without any restrictions. To do so would violate the duty of reasonable accommodation under the ADA and the FEHA.

LCW Practice Advisor

3. C ERTIFICATION OF E NTITLEMENT TO P REGNANCY L EAVE An employer may require medical certifications as a condition for permitting employees to take a leave of absence under the PDL, or to transfer to a different position because of pregnancy, childbirth or other related medical conditions. The employer “must notify the employee of the need to provide medical certification; the deadline for providing the certification; what constitutes sufficient medical certification; and the consequences of failing to provide medical certification.” 208

A certification indicating a disability that necessitates the leave should include the following information, and nothing else:

 The date on which the employee became disabled due to pregnancy, childbirth, or related medical conditions;

 The probable duration of the period or periods of disability; and

 An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons. 209

A certification indicating the medical advisability of the transfer should include the following information, and nothing else:

 The date on which the need to transfer became medically advisable;

 The probable duration of the period or periods of the need to transfer; and

 An explanatory statement that, due to the woman’s pregnancy, the transfer is medically advisable. 210

If the certification contains the above information, the employer must accept it as sufficient . 211

An employer may also require an employee returning to work from pregnancy disability leave to obtain a release to return to work stating that the employee is able to resume her original job duties. However, the employer may only require a release if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave. 212

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 67