Right of Privacy in the Workplace

The California Constitution, Article 1, Section 1 guarantees the right of personal privacy The California Confidentiality of Medical Information Act (CMIA) and Health Insurance Portability and Accountability Act (HIPPA) protects the right of privacy of medical information.

There are three important areas which the employer may require the employee to provide personal or medical information.

  1. An employment application

In an employment application, the employer may ask if the applicant has been convicted of a felony. This is legal for the employer to ask. It is illegal for the employer to ask whether the employee has been arrested for a felony. The difference may seem technical but it is really substantive. Just because the employee was arrested, it does not mean that the employee was guilty of a crime or is untrustworthy. The employee may be the victim of a mistake of identification. However, in certain government agencies, dealing with national security arrests may be relevant. .

  1. Investigation of a sexual harassment complaint

As a general rule, the employer does not have a right to inquire about the sexual relationships of its employees. The exception would be if the employer is investigating a sexual harassment complaint. The employer may ask the victim if she/he had a sexual relationship with the alleged harasser. When such information is obtained, it must be held in strict confidence.

  1. The request for a medical leave of absence

If an employee requests a medical leave of absence, the employer may use a Family and Medical Leave Act (FMLA) form. The FMLA form requires the doctor to provide a diagnosis of the medical condition to the employer. Under the California Family Rights Act (CFRA) form, the doctor is not asked to provide a diagnosis. No matter which form is used, the employee can instruct the doctor not to provide a diagnosis, as medical information is protected under California Confidentiality of Medical Information Act (CMIA) and the Health Insurance Portability and Accountability Act (HIPPA).

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