Privacy Issues in the Workplace

evaluation; and the high level of fortitude and professionalism required of litigation attorneys.”

Jermon v. County of Sonoma 224 A janitor came to work and locked himself in the employee break room. After discovering him, his supervisors ordered him to take a fitness for duty examination for drug or alcohol abuse. The employee brought suit challenging the county’s policy. The county’s fitness for duty drug and alcohol policy required the following procedures: 1) the employee exhibit at least two conditions commonly associated with substance abuse, 2) the supervisor check with their manager prior to testing, 3) the supervisor talk with the employee regarding their behavior, 4) the supervisor speak with medical staff regarding the behavior, 5) the supervisor must keep records of all suspected behavior and 6) the employee must be returned to work if he or she is found to be “fit.” The court upheld the policy in finding no constitutional violations or evidence that the testing was a condition of employment.

4. W HAT I NFORMATION I S AN E MPLOYER E NTITLED TO R ECEIVE F OLLOWING A F ITNESS FOR D UTY E XAMINATION ? Under the Confidentiality in Medical Information Act (CMIA), unless written authorization is received from an employee, an employer is only entitled to know whether the employee can perform the essential functions of the job. The employer cannot be advised of the medical cause of an employee’s inability to perform. 225 If an employee requires a reasonable accommodation or is otherwise unable to perform the essential functions of the job, the employer is entitled to know the functional limitations on the employee’s ability to perform the job (e.g., the employee cannot stand for extended periods of time; the employee cannot lift objects weighing more than 25 pounds). 226 If there is any doubt, an employer should not be afraid to seek clarification from the examiner concerning what an employee can and cannot do. 5. W HAT I NFORMATION C AN THE E MPLOYER G IVE A D OCTOR ? Unless a health care professional is regularly called upon to treat a specific group of employees (e.g., a police department may regularly send officers to a particular physician for fitness for duty examinations), he or she may not have the requisite knowledge of a position to know what the essential functions of the job are, let alone make a determination that an employee can or cannot perform those functions. The solution to this problem is simple. Nothing in the law prohibits an employer from providing a health care provider with a detailed job description, or even an opportunity to visit the job site to see how the job is performed.

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