60 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 3.5.6 Business and Profession Code § 2056—health care advocacy by physician No person shall terminate, retaliate against, or otherwise penalize a physician for advocating medically appropriate health care for the physician’s patients.49 3.5.7 Health and Safety Code § 1278.5—health care advocacy California health facilities cannot retaliate against employees or medical staff for complaining to the facility, to an accrediting agency, or to a governmental entity, or for participating in any investigation of the facility’s quality of medical care.50 A “rebuttable presumption” of unlawful retaliation by the facility arises if its “responsible staff” knows of an individual’s protected activity and if the facility takes adverse action against the individual within 120 days of the filing of a grievance or a complaint.51 3.5.8 Labor Code § 1019—retaliation by reporting immigration issues because of exercise of rights California employers must not report or threaten to report to a government agency the suspected citizenship or immigration status of an individual who is an employee, former employee, prospective employee (or that of the individual’s family members) in retaliation for the individual’s exercise of rights under California laws.52 The definition of “unfair immigration-related practices” includes filing or threatening to file false reports to a state or federal agency, contacting or threatening to contact immigration authorities, and certain unauthorized uses of immigration documents.53 Persons subjected to unfair immigration-related practices have a private right of action, and a court may order government agencies to suspend business licenses.54 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 employment.55 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[.]”56 The 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.57 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.58 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 jobrelated and there is a business necessity under the specific circumstances.59 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.”60
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