“Job related and consistent with business necessity.” Under Government Code section 12940, subdivision (f), that’s the standard a California employer must meet before requiring a current employee to undergo a medical or psychological exam or answer questions about a disability. A fitness-for-duty exam ordered after documented safety concerns usually meets it. A health question asked out of curiosity, or an exam ordered because a manager wants an employee gone, usually doesn’t, and the medical inquiry itself becomes a claim.
When can an employer ask an employee about health?
Only when the question is tied to the job and the business needs the answer. The statute makes it unlawful “to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.”
The exception is in paragraph (2). An employer “may require any examinations or inquiries that it can show to be job related and consistent with business necessity.” The burden sits with the employer. If the exam or question is challenged, the company has to prove both parts.
The Civil Rights Department’s regulations define both terms. Under California Code of Regulations, title 2, section 11065, business necessity “means that the need for the disability inquiry or medical examination is vital to the business.” Job-related “means tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.” A question that’s only useful or interesting doesn’t qualify.
What can an employer ask job applicants?
Almost nothing about health before an offer. Subdivision (e) bars any employer from requiring “any medical or psychological examination of an applicant” or making “any medical or psychological inquiry of an applicant” before the offer. The employer “may inquire into the ability of an applicant to perform job-related functions,” so asking whether a candidate can lift 50 pounds is fine, while asking whether the candidate has a back condition isn’t.
After an offer, the rules loosen. Under subdivision (e)(3), an employer may require an exam or inquiry “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.”
The regulation adds two conditions that trip employers up. Where the results “would result in disqualification, an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made.” And the offer can be withdrawn only if the applicant “is unable to perform the essential duties of the job with or without reasonable accommodation” or would endanger the health or safety of the applicant or others. Employers that rescind an offer the day a post-offer physical comes back flagged, before the applicant’s own doctor weighs in, often end up defending a disability claim.
When is a fitness-for-duty exam justified?
When there’s objective evidence the employee may not be able to do the job safely. The regulation says an employer “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.”
The leading appellate example is Kao v. University of San Francisco (2014) 229 Cal.App.4th 437. Faculty members and administrators reported that a math professor’s behavior frightened them. The university, on a consultant’s advice, required a fitness-for-duty exam and fired him when he refused. A jury found for the university, and the Court of Appeal affirmed. The court held that the jury “had ample evidence from which to find that an FFD was necessary to determine whether he posed a danger to others in the workplace,” pointing out that “Multiple people reported multiple instances of threatening behavior on his part.”
What carried the university was its record. It had written reports from several witnesses, outside expert advice, and letters to the professor explaining the concern and offering alternatives. An employer that orders an exam on a single supervisor’s impression, with nothing in writing, is in a much weaker position.
Does the employer have to start the interactive process first?
Not always. Kao argued the university had to engage in the interactive process before requiring the exam. The court disagreed on those facts, explaining that the requirement “was not implicated here because Kao never acknowledged having a disability or sought any accommodation for one.”
That holding has limits. When an employee has asked for an accommodation, or the disability is obvious, the interactive process duty applies, and a fitness-for-duty exam can’t replace the conversation. The exam may be part of that process, to learn what restrictions apply, but it shouldn’t be the employer’s only step.
What happens if the employee refuses the exam?
The employer may act, within limits. California’s medical privacy statute protects an employee who won’t sign a release. Civil Code section 56.20 provides that “No employee shall be discriminated against in terms or conditions of employment due to that employee’s refusal to sign an authorization under this part.” The next sentence preserves the employer’s position: “nothing in this section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee’s refusal to sign an authorization under this part.”
In Kao, that second sentence decided the claim. The court held that the evidence supporting the exam “also supported a finding that his discharge was ‘necessary’ within the meaning of Civil Code section 56.20, subdivision (b) because of his refusal to release the medical information required for the FFD.” Discipline for refusing a lawful exam is defensible. Discipline for refusing an exam the employer couldn’t justify in the first place is not.
How must the employer handle the medical information it gets?
Separately and confidentially. The CMIA requires every employer that receives medical information to “establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of that information.” It bars the employer from using or disclosing that information unless the employee signs an authorization or a narrow exception in subdivision (c) applies, such as a lawsuit “in which the patient has placed in issue his or her medical history, mental or physical condition, or treatment.”
The FEHA regulation requires the same separation for exam results. Post-offer results “are to be maintained on separate forms and shall be accorded confidentiality as medical records,” according to the regulation. In practice, the examining doctor should report only whether the employee can do the job and with what restrictions. A manager who receives a diagnosis, forwards it to the team, or files it in the personnel folder creates a privacy claim on top of whatever dispute prompted the exam.
Do online screening tools count as medical inquiries?
They can. The Civil Rights Council amended the regulation in rules that took effect on October 1, 2025, according to the Civil Rights Department. The final regulation text says a medical exam or disability-related inquiry “includes any such examination or inquiry administered through the use of an automated-decision system,” and that it “may include a test, question, puzzle, game, or other challenge that is likely to elicit information about a disability.” A pre-offer personality or game-based assessment that screens for traits tied to a mental health condition can be an unlawful pre-offer inquiry, even if no one at the company wrote a health question. Employers using vendor tools should ask what each test measures.
How do the medical inquiry rules compare?
| Stage | What’s allowed | Source |
|---|---|---|
| Before a job offer | Questions about ability to perform job functions, with no medical exams or disability questions | Gov. Code § 12940(e)(1)-(2) |
| After offer, before start | Exams that are job related, consistent with business necessity, and given to everyone in the job classification | Gov. Code § 12940(e)(3); 2 CCR § 11071(b) |
| Current employees | Exams and inquiries the employer can show are job related and consistent with business necessity | Gov. Code § 12940(f)(2); 2 CCR § 11071(d)(1) |
| Employee refuses a release | Employer may take necessary action, but may not retaliate for the refusal itself | Civ. Code § 56.20(b); Kao |
| Results and records | Kept confidential and separate from personnel files | Civ. Code § 56.20(a), (c); 2 CCR § 11071(b)(3), (d)(4) |
What should an employer do once a medical inquiry claim arrives?
These claims turn on what the employer knew when it ordered the exam. Reconstruct that record before anything else changes.
- Preserve the incident reports, witness statements, emails and texts about the employee’s conduct or condition, the exam referral and any vendor contract, the doctor’s report, and the medical file kept separately from the personnel file.
- Calendar the deadline on the CRD complaint, demand letter, or lawsuit, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
- Identify who decided to order the exam and who saw any medical information, and stop further discipline or contact with the employee about the medical issue until counsel has reviewed it.
- Pull every document showing why the exam was job related, what the examining doctor was asked to assess, and whether the employee ever requested an accommodation.
- Talk to a lawyer before responding, sharing any medical information, or offering anything to resolve the claim.
Companies that need employment defense representation for California businesses can review the firm’s practice page.
Medical inquiry questions from California employers
Can we require drug testing of current employees?
In some circumstances. The regulation allows alcohol or drug testing to enforce workplace rules “if they have a reasonable belief that an employee may be under the influence of alcohol or drugs at work.” Questions about current illegal drug use aren’t disability inquiries, but questions about past addiction or rehab are. Document the observations behind the reasonable belief before testing.
Can a supervisor see the doctor’s report?
Not the medical details. The supervisor needs to know whether the employee can work and what restrictions apply, and nothing more. The CMIA bars use or disclosure of employee medical information without an authorization, apart from listed exceptions. Ask the examining doctor to limit the report to work capacity, and route the full file to HR only.
Do DOT physicals and other required exams need a business necessity showing?
Not separately. The regulation permits exams “that are mandated or necessitated by other federal and/or state laws or regulations,” and gives interstate truck and bus drivers as an example. The employer should still limit the exam to what the other law requires and keep the results confidential.
Are wellness program screenings covered?
Voluntary ones are allowed without a business necessity showing. The regulation says a wellness program “is voluntary as long as an employer neither requires participation nor penalizes employees who do not participate,” and requires that records be kept “confidential and separate from personnel records.” Premium surcharges or other penalties for skipping a screening can undercut that status.
If a medical inquiry claim reaches your company
If your company has received a CRD complaint, demand letter, or lawsuit over a fitness-for-duty exam or a health question, the record the company had when it ordered the exam usually decides how much of the claim is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving medical examinations and disability-related inquiries. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Government Code section 12940 and Civil Code section 56.20. The regulations are California Code of Regulations, title 2, section 11065 and section 11071, including subdivision (e) as adopted in the Civil Rights Council’s final regulation text. The decision is Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, a published Court of Appeal decision.
This post is general information about California employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.