Legal Question in Employment Law in California

i would like to verify that an employer does not have the right to require diagnosis or list of medications when returning from a disablility leave.

A dr note has been provided stating my husband is able to return to work with no restrictions and is able to drive.

My husband has been going back and forth with his employer and has now been out of work for 3 wks.

Also, worse case scenario since he has no income can he file for unemployement? he has not been fired but his employer is from what i understand violating the Medical Privacy act. and wanted Protected Health Info.

Asked on 11/29/12, 9:02 am

3 Answers from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum

You are correct. An employer only is permitted to know whether an employee is fit for duty, for liability reasons. Under most circumstances, it cannot require an employee to provide private medical information, such as the nature of the employee's medical condition and treatment.

However, medical privacy is a tricky area and in some circumstances, the employer's business interests must be balanced with the need for the employee's privacy. For example, if your husband were an airline pilot, his right to privacy is lessened because of the obvious need of the employer to be sure he is not under medication that may endanger the safety of the public. We then get into who has the right to know and how intrusive the information needs to be.

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Answered on 11/29/12, 9:14 am

Terry A. Nelson Nelson & Lawless

The employer is entitled to get a doctor's release authorizing return to work with no restrictions, without disclosure of personal details. However, if the return only authorizes return only to 'limited duty; they do not have to return you to work unless you are also seeking accommodation of any disability. Then they are entitled to know the pertinent details of your condition, your limitations, and what is needed for accommodation.

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Answered on 11/29/12, 10:36 am

If your husband's injury is work-related, the employer has right to know his restriction, including the medication he is taking. As far as income, if his injuries is work-related, then he is entitled to receive temporary disability benefits. Feel free to call us at 213.388.7070 for a free consultation.

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Answered on 11/29/12, 11:09 am

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