HR has "concerns." There is a form, a clinic you did not choose, and a sense that the appointment is a trap. The law on this is narrower than either you or HR probably think.
The short answer: only within limits. California's Fair Employment and Housing Act makes it unlawful for an employer "to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee," with one exception: "An employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity."¹ The state regulation says the same of fitness-for-duty exams specifically.² Whatever the examiner learns is kept as a confidential medical record, apart from your personnel file.² And under the Confidentiality of Medical Information Act, what the examiner may tell the employer is limited to functional limitations "that may entitle the patient to leave from work for medical reasons or limit the patient's fitness to perform the patient's present employment, provided that no statement of medical cause is included in the information disclosed."³ The employer gets what you can and cannot do at work. It does not get the diagnosis — unless you authorise more in writing, or put your condition at issue in a claim against it.
The test the employer has to meet
The burden is on the employer. It is not enough that a manager is worried, or that a colleague complained, or that you disclosed a diagnosis when asking for accommodation. The examination must be one the employer "can show to be job related and consistent with business necessity."¹ The regulation restates it for exactly this situation: "An employer or other covered entity may make disability-related inquiries, including fitness for duty exams, and require medical examinations of employees so long as the inquiries are both job-related and consistent with business necessity."²
What that looks like in practice is a specific, documented concern about your ability to do the essential functions of this job, or about safety, tied to things the employer has observed — not to the fact of a condition. A pilot with an episode of impaired judgment in the cockpit is one case. A bookkeeper whose manager learned they see a psychiatrist is not.
Two situations sit outside the test. An exam "mandated or necessitated by other federal and/or state laws" — a commercial driver's medical certificate, for instance — is permitted on that basis.² And a voluntary examination that is part of an employee health program needs no showing at all, provided the records are kept confidential and separate.² Voluntary means voluntary: a program you must join to keep your job is not one.
Before you are hired
The rules for applicants are stricter still. An employer may not require a medical or psychological examination of an applicant, or make such an inquiry, at all — except that it "may inquire into the ability of an applicant to perform job-related functions," and may require an exam "after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry."¹ A psychological screen that only some new hires get, or that comes before the offer, is outside the statute.
What the employer is allowed to learn
This is the part most employees do not know. Even where an exam is lawful, the employer's window into it is small. Under the Confidentiality of Medical Information Act, an examiner acting at the employer's request may tell the employer only about functional limitations that bear on leave or on fitness for the present job — "provided that no statement of medical cause is included in the information disclosed" — with two exceptions the Act names: what you authorise in writing, and information relevant to a lawsuit, grievance or claim in which you have put your condition at issue.³ The employer may be told cannot work more than eight hours; needs a predictable schedule; may not carry a firearm for ninety days. It may not be told major depressive disorder or PTSD.
Whatever is learned goes into a separate file. For a post-offer examination the regulation says "the results are to be maintained on separate forms and shall be accorded confidentiality as medical records"; for an employee it requires that "employers shall keep information obtained regarding the medical or psychological condition or history of the employee confidential," on separate forms in separate medical files, with supervisors told only of necessary work restrictions.²
What to do when you are told to go
- Ask for it in writing — the reason, the essential functions in question, and who will see the report. An employer that cannot articulate the job-related concern is telling you something.
- Ask what the examiner will be permitted to disclose. The correct answer is: functional limitations, no diagnosis, no cause.³ Say the words "Civil Code 56.10" if you need to.
- Do not refuse outright without advice. Refusing a lawful, properly scoped exam can cost you the job; refusing one that fails the test is a different matter. Which it is turns on the test above, and that is a question for the Civil Rights Department or an employment lawyer, not for the parking lot.
- Your own therapist is not the examiner. An employer-arranged evaluation is a one-time assessment with a stated purpose; your treatment relationship is separate, and its records are yours. Is therapy confidential? → · Therapy and security clearances →
When the request came after you asked for help
If the exam was ordered after you asked for an accommodation or leave, the sequence matters. The regulations let an employer ask for "reasonable medical documentation" of a disability and the need for accommodation — but "it shall not ask the applicant or employee about the underlying medical cause of the disability," and "disclosure of the nature of the disability is not required."⁵ The same sentence lets the employer "require medical information" and a second opinion, but about the need for accommodation — not a licence to examine whether you are well. And if the exam is being made a condition of coming back from CFRA leave, the leave regulations forbid it outright: "An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee's return."⁶ Mental health accommodations at work → · Mental health leave in California → · Returning to work after mental health leave →
Q&A
Q: Can they pick the psychologist? A: An employer arranging a fitness-for-duty exam typically arranges the examiner; the constraint is on scope and disclosure, not on choice. What you can insist on is the disclosure limit in Civil Code §56.10.³
Q: Will the report say what I was diagnosed with? A: The report to the employer may not include a statement of medical cause; it is limited to functional limitations relevant to leave or to fitness for the present job.³
Q: Can it go in my personnel file? A: No. Results must be kept on separate forms and treated as confidential medical records.²
Q: Where do I complain? A: These are Fair Employment and Housing Act provisions; complaints go to the Civil Rights Department. The Act covers employers of five or more employees.⁴
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Sources
Cal. Government Code §12940(e) and (f) — the bar on requiring a medical or psychological examination of an applicant or employee; the applicant exceptions for job-related inquiries and post-offer, uniform examinations; and the employee exception for examinations the employer "can show to be job related and consistent with business necessity" — california.public.law.
2 Cal. Code Regs. §11071 — fitness-for-duty exams permitted "so long as the inquiries are both job-related and consistent with business necessity"; exams mandated by other law; voluntary employee health programs; post-offer results "maintained on separate forms" and "accorded confidentiality as medical records"; the employee-side duty in (d)(4), with §11069(g), to keep the information confidential in separate medical files — law.cornell.edu.
Cal. Civil Code §56.10(c)(8) — disclosure to an employer from an employer-requested examination limited to functional limitations "that may entitle the patient to leave from work for medical reasons or limit the patient's fitness to perform the patient's present employment, provided that no statement of medical cause is included in the information disclosed," and the lawsuit-or-claim exception in (c)(8)(A); written authorisation under subdivision (a) — california.public.law.
Cal. Government Code §12926(d) — "employer" under the Act includes any person regularly employing five or more persons — california.public.law; complaints under the Act are filed with the Civil Rights Department under §12960 — california.public.law.
2 Cal. Code Regs. §11069(c) and (d) — an employer "may require the applicant or employee to provide such reasonable medical documentation" of a disability and the need for accommodation; "it shall not ask the applicant or employee about the underlying medical cause of the disability"; "disclosure of the nature of the disability is not required" — law.cornell.edu.
2 Cal. Code Regs. §11091(b)(2)(F) — "An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee's return" from CFRA leave; (b)(2)(E), a return-to-work release only under a uniformly applied policy — law.cornell.edu.
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