(a) Whenever a complaint includes allegations
that require the department to obtain and analyze medical information, such as
complaints alleging physical or mental disability discrimination, denial of
reasonable accommodation, pregnancy discrimination, and/or a violation of the
California Family Rights Act (Gov. Code, §
12945.1 et
seq.), the complainant shall authorize the department in writing to request and
obtain copies of all directly relevant medical records or information
reasonably necessary to evaluate and prosecute the complaint.
(b) During the enforcement division's
investigation, all medical records the department obtains during the
investigation shall be maintained in a section of the case file clearly marked
"Medical Records" or otherwise designated as "Confidential."
(c) If a civil action is filed, all directly
relevant medical records or information reasonably necessary to prosecute the
civil complaint, if any, may be disclosed by the department when disclosure is
necessary to further prosecution and/or settlement of the claim.
(d) No medical records or information shall
be disclosed by the department in response to a request for public records made
pursuant to the California Public Records Act. (Gov. Code, §
6254(c).)
(e) No medical records or information shall
be disclosed by the department in response to a third-party subpoena unless a
Notice to Consumer/Employee has been served on the complainant and there has
been no objection communicated to the department by the complainant or the
complainant's attorney. (Code. Civ. Proc., §§
1985.3,
1985.6, and
2020.410.)
(f) The department shall abide by
complainant's attorney's requests to protect the privacy of complainant's
medical information. However, if the department is unable to obtain the medical
information and records it deems reasonably necessary to investigate and/or
prosecute a complainant's allegations, the department may discontinue the
investigation and close the complaint.
Notes
Cal. Code Regs. Tit. 2, §
10015
1. New
section filed 9-7-2011; operative 10-7-2011 (Register 2011, No.
36).
2. Amendment of subsection (c) filed 10-27-2014 as an
emergency; operative 10-27-2014 (Register 2014, No. 44). A Certificate of
Compliance must be transmitted to OAL by 4-27-2015 or emergency language will
be repealed by operation of law on the following day.
3. Certificate
of Compliance as to 10-27-2014 order transmitted to OAL 4-20-2015 and filed
6-2-2015 (Register 2015, No. 23).
4. Amendment of subsection (b)
filed 8-31-2017; operative 10-1-2017 (Register 2017, No.
35).
Note: Authority cited: Section
12930(e),
Government Code. Reference: Board of Trustees v. Superior Court (1981) 119
Cal.App.3d 516 [174 Cal.Rptr. 160] [discovery of private information requires
direct relevance to claim]; Sections
1985.3,
1985.6
and
2020.410,
Code of Civil Procedure; and Sections
6253,
6254(c),
12930(f)(1),
12940(a),
12940(m),
12945,
12945.1,
12945.2
and
12960(b),
Government Code.
1. New
section filed 9-7-2011; operative 10-7-2011 (Register 2011, No.
36).
2. Amendment of subsection (c) filed 10-27-2014 as an
emergency; operative 10/27/2014 (Register
2014, No. 44). A Certificate of Compliance must be transmitted to
OAL by 4-27-2015 or emergency language will be repealed by operation of law on
the following day.
3. Certificate of Compliance as to 10-27-2014
order transmitted to OAL 4-20-2015 and filed 6-2-2015 (Register 2015, No.
23).
4. Amendment of subsection (b) filed 8-31-2017; operative
10/1/2017
(Register
2017, No. 35).
