Alert from CDFF Legal Counsel: Fitness-For-Duty Evaluations

1. An employee must be ordered to attend a fitness-for-duty evaluation by someone in that employee's chain of command
2. Employees cannot be required to waive their medical privacy and confidentiality rights as part of a fitness-for-duty evaluation
3. Do NOT sign a waiver of confidentiality without talking to the State Rank-and-File Representative (Ken Hale) or the State Supervisory Representative (Fred Flores)
Something disturbing is occurring in CAL FIRE with respect to fitness-for-duty evaluations. Whenever you are ordered to a fitness-for-duty evaluation, you should immediately contact the State Rank-and-File Representative (Ken Hale) or the State Supervisory Representative (Fred Flores)
CAL FIRE is entitled to order its employees to attend and cooperate with fitness-for-duty evaluations (medical or psychological) pursuant to Government Code section 19253.5(a). However, an employee is not required to attend a fitness-for-duty evaluation in the absence of an order to do so from someone in the employee's chain of command. Additionally, some basis should be given for the order to attend a fitness-for-duty evaluation.
Although CAL FIRE does have the authority to order employees to attend and cooperate with fitness-for-duty evaluations, employees subject to such evaluations do not waive their confidentiality rights with respect to their medical records. Recently, we have seen some disturbing attempted violations of employees' confidentiality rights when it comes to fitness-for-duty evaluations.
You have a constitutional right to privacy which you do not lose by virtue of becoming a public employee. Long Beach City Employees Association v. City of Long Beach, 41 Cal.3d 937, 951 (1986). California law generally prohibits a health care provider from disclosing medical information regarding a patient without first obtaining the patient's authorization. Civil Code § 56.10(a). A limited exception exists for fitness-for-duty evaluations performed at the employer's written request and expense.
Civil Code section 56.10(c)(8)(B) states:
. . . (c) A provider of health care may disclose medical information as follows:
. . . (8) A provider of health care that has created medical information as a result of employment-related health care services to an employee conducted at the specific prior written request and expense of the employer may disclose to the employee's employer that part of the information which:
. . . (B) Describes functional limitations of the patient that may entitle the patient to leave from work for medical reasons or limit the patient's fitness to perform his of her present employment, provided that no statement of medical cause is included in the information disclosed.
Based on the above statutory provision, unless you authorize a greater release of information, doctors or any other providers of health care performing fitness-for-duty evaluations can only report to CAL FIRE whether the you are fit or unfit to perform the duties of your position and describe functional limitations that may restrict your ability to perform your job. No other information may be released to CAL FIRE, or anyone else. In fact, we typically recommend that an employee scheduled for a fitness-for-duty evaluation bring to the evaluation a letter from CDFF or legal counsel, setting forth their rights to confidentiality and a statement that they are not waiving any rights. Additionally, that letter typically contains a statement that the individual will not execute an authorization allowing the doctor or any other provider of health care to release more information than permitted by Civil Code § 56.10(c)(8)(B).
Recently, a CAL FIRE employee was presented with a waiver by one of the CAL FIRE selected medical providers, which would have waived all confidentiality with respect to the evaluation, communications between the medical provider and the employee, and all of the employee's medical records (including those received from third parties). The waiver would have allowed the medical provider to disclose far more information than Civil Code section 56.10(c)(8)(B) allows, and would have authorized the medical provider to disclose that information to virtually anyone, without limitation. Based on the language of the waiver, the one person who would not have access to the results of the evaluation, the reports, the medical records, and all other information would be the employee himself.
When presented with a waiver like this, or any waiver relating to a fitness-for-duty evaluation, we recommend that you contact your CDFF representative, Ken Hale or Fred Flores, prior to considering signing. In many cases we would recommend that you NOT sign any waiver broader than what is required under Civil Code section 56.10(c)(8)(B).
In sum, although CAL FIRE may order you to attend and cooperate with medical and psychological fitness-for-duty evaluations, it must not only advise you of the basis for that order, but it must also ensure that such an evaluation does not require you to waive your right to confidentiality in your medical records and information.

Gary M. Messing
CDFF Chief Legal Counsel
Partner, CB&M

and

Jason H Jasmine
Associate, CB&M