Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 63 immigration document s. 50 Persons subjected to unfair immigration-related practices have a private right of action, and a court may order government agencies to suspend business licenses . 51 3.6 Refusal to Undergo Medical Treatment or Exam The California constitutional right of autonomy can protect an employee’s right to determine the course of medical treatment or lack thereof. An employee thus could sue an employer for relying on confidential medical information to require that the employee enroll in a 30-day inpatient alcohol treatment program as a condition of employmen t. 52 3.6.1 Protection for refusing to provide certain medical information Under a Civil Code provision, California employers must not discriminate against employees for refusing to sign a release of medical information to the employer, although employers may take “such action as is necessary in the absence of medical information due to an employee’s refusal to sign an authorization. ” 53 T he Court of Appeal has rejected a claim based on this provision, holding that an employer could fire an employee for refusing to undergo a job-related fitness-for-duty exam where the examiner would have reported to the employer no medical information other than whether the employee was fit for duty . 54 3.6.2 Fitness-for-duty exam upon return from medical leave Under the FMLA, when an employee’s physician certifies that the employee can return to work from leave, the employer must return the employee to work. The Court of Appeal has held that an employer may require a fitness-for-duty medical examination upon the employee’s return from leave, so long as the examination is job- related and a business necessity under the specific circumstances . 55 3.7 Changing Personal Information California employers must not discharge, discriminate, retaliate, or take adverse action against an employee because the employee “updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document. ” 56 1 Gerawan Farming, Inc. v. Lyons , 24 Cal. 4th 468, 490 (2000) (citing People v. Hannon , 19 Cal. 3d 588, 607, fn. 8 (1977)). 2 Cal. Const., art. I, § 1 (“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”). 3 Lab. Code §§ 96(k), 98.6(a). Section 96 provides: “The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefore by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of: ... (k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Section 98.6 provides: “(a) A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 … . (b)(1) Any employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 ... shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer.” 4 Lab. Code § 98.6(c)(2)(A). 5 Lab. Code § 98.6(c)(2)(B). 6 Rulon-Miller v. IBM , 162 Cal. App. 3d 241, 248 (1984) (observing “close question of whether those rules or regulations permit IBM to inquire into the purely personal life of the employee. … [T]he right of privacy, a constitutional right in California … , could be implicated by the IBM inquiry.”). In upholding a jury verdict for the employee, the Rulon-Miller court relied on the implied covenant of good faith and fair dealing, with the constitutional discussion as background, rather than relying directly on the constitutional right to privacy itself.