EMPLOYEE MEDICAL PRIVACY ISSUES (PART 2)

FITNESS FOR DUTY EXAMS

This is the second in a series of posts regarding medical privacy issues in the workplace.  This post concerns the handling of fitness-for-duty exams.

Fitness-for-Duty exams are allowed notwithstanding constitutional, statutory and common law privacy protections, so long as they have a reasonable relationship to the work to be performed. Garrett v. L.A.U.S.D. (1981) 116 Cal.App.3rd 472.  The ADA prohibits exams to determine the existence or extent of an employee’s disability, except for the business necessity of determining his or her ability to do the work.

Post-offer exams of job applicants are allowed only if all of the applicants in the same job category are required to be examined, not just the disabled applicants.  The offer cannot be withdrawn if the person is capable of doing the essential functions of the job, with or without an accommodation.

Medical information obtained in the fitness-for-duty exam must be maintained on separate forms and in separate, confidential files. Pettus v. Cole (1996) 49 CalApp4th 402 at 446, holds that an employer is not entitled to the full reports of the examiner, only to a limited description of the employee’s functional limitations.

The fitness-for-duty examiner should report back to the employer only as to the employee/applicant’s ability to do the job assigned, and whether he/she poses risks to himself/herself, other employees, or to the public.

Labor Code Sec 222.5 prohibits employers from requiring employees to pay for the fitness-for-duty exams, and mental or physical injuries alleged to have resulted from a proper fitness-for-duty exam are likely to be covered by workers’ compensation, including the exclusive remedy rule.  Semore v. Pool (1990) 217 Cal.App.3rd 1087, 1104.

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