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.
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