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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Can I maintain my medical privacy and still get an “accommodation” for it from my California employer?

This is a common dilemma in our California employment discrimination cases.  On the one hand, various HIPPA laws and state laws (such as the California Constitution, common law, and California Civil Code 56) provide for privacy and limited use of an employee’s medical records. Numerous ‘internal” walls exist to protect this valuable right. For example, an employer’s workman’s compensation carrier or disability insurer may have knowledge of the precise details of an industrially-injured employee’s physical condition, but HR and his/her manager would not be entitled to this knowledge.

Under the Americans with Disabilities Act, an employer must have knowledge of the disability when making an adverse employment decision. Otherwise, the employer could not be deemed to have discrimination “because of” an unknown disability. Taylor vs. Principal Fin’l Group, 93 F3d 155, 163-64. However, in some cases, knowledge is deemed to be “imputed” to the employer where the known symptoms were obvious, such that it would be reasonable to infer that the employer had actual knowledge of the disability. In one recent case, however, the fact of absenteeism, claim of stress and a relative’s statement that the employee was mentally falling apart were not sufficient to put the employer on notice of the protected condition of manic-depression.

Rather than “take a chance” that the employer is aware of the medical condition, you might consider waiving your right to privacy so knowledge of your condition is eliminated as a legal hurdle to winning your case. The employer is entitled to request this medical information if the employee ASKS for an accommodation. EEOC Notice No. 915-002, 7/27/00. “Enforcement Guidance on Disability-Related Inquiries and Medical Exams of Employees under the ADA”.

California case law makes clear that an employer has a duty to make an accommodation for a disability even if the employee has not requested an accommodation. Priliman vs. United Air Lines, Inc. 53 CA4th 935, 949-950 (1997). Under California’s Fair Employment and Housing laws, the requirement for a reasonable accommodation includes conditions which the employer “regards” the employee as having, whether or not the employee actually has the protected condition. Gelfo vs. Lockheed Martin Corp, 140 CA4th 34, 60 (1006).

The offer to accommodate is on-going and even though fulfilled many times, the failure to not accommodate on a single occasion may be actionable. In A.M> vs. Albertsons, LLC, 178 CArth at 465, the employer had given bathroom breaks for more than a year, but when it missed one time, it caused serious mental and physical consequences and was actionable.

As always, please consider this blog educational in nature. Legal advise can only be given by an attorney licensed in your jurisdiction and familiar with your facts. We love to talk law! Call me anytime to discuss your case. Steve Danz 877 789 9707.