CACI 3071 Retaliation for Refusing to Authorize Disclosure of Medical Information—Essential Factual Elements (Civ. Code, § 56.20(b))

California Civil Jury Instructions CACI

3071 Retaliation for Refusing to Authorize Disclosure of Medical Information—Essential Factual Elements (Civ. Code, § 56.20(b))

[Name of plaintiff] claims that [name of defendant] discriminated against [him/her/nonbinary pronoun] because [he/she/nonbinary pronoun] refused to authorize disclosure of [his/her/nonbinary pronoun] medical information to [name of defendant]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] asked [name of plaintiff] to sign an authorization so that [name of defendant] could obtain medical information about [name of plaintiff] from [his/her/nonbinary pronoun] health care providers;

2.That [name of plaintiff] refused to sign the authorization;

3.That [name of defendant] [specify retaliatory acts, e.g., terminated plaintiff’s employment];

4.That [name of plaintiff]’s refusal to sign the authorization was a substantial motivating reason for [name of defendant]’s decision to [e.g., terminate plaintiff’s employment];

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Even if [name of plaintiff] proves all of the above, [name of defendant]’s conduct was not unlawful if [name of defendant] proves that the lack of the medical information made it necessary to [e.g., terminate plaintiff’s employment].

Directions for Use

An employer may not discriminate against an employee in terms or conditions of employment due to the employee’s refusal to sign an authorization to release the employee’s medical information to the employer. (Civ. Code, § 56.20(b).). However, an employer may take any action that is necessary in the absence of the medical information due to the employee’s refusal to sign an authorization. (Ibid.)

Give this instruction if an employee claims that the employer retaliated against the employee for refusing to authorize release of medical information The employee has the burden of proving a causal link between the refusal to authorize and the employer’s retaliatory actions. The employer then has the burden of proving necessity. (See Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 453 [177 Cal.Rptr.3d 145].) If necessary, the instruction may be expanded to define “medical information.” (See Civ. Code, § 56.05(j) [“medical information” defined].)

The statute requires that the employer’s retaliatory act be “due to” the employee’s refusal to release the medical information. (Civ. Code, § 56.20(b).) One court has instructed the jury that the refusal to release must be a “motivating reason” for the retaliation. (See Kaosupra, 229 Cal.App.4th at p. 453.) With regard to the causation standard under the Fair Employment and Housing Act, the California Supreme Court has held that the protected activity must have been a substantial motivating reason. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

Sources and Authority

Confidentiality of Medical Information Act. Civil Code section 56 et seq.

Employee’s Refusal to Authorize Release of Medical Records to Employer. Civil Code section 56.20(b).

“An employer ‘discriminates’ against an employee in violation of section 56.20, subdivision (b), if it improperly retaliates against or penalizes an employee for refusing to authorize the employee’s health care provider to disclose confidential medical information to the employer or others (see Civ. Code, § 56.11), or for refusing to authorize the employer to disclose confidential medical information relating to the employee to a third party (see Civ. Code, § 56.21).” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 861 [59 Cal. Rptr. 2d 696, 927 P.2d 1200], original italics.)

“[T]he jury was instructed that if [plaintiff] proved his refusal to authorize release of confidential medical information for the FFD [fitness for duty examination] was ‘the motivating reason for [his] discharge,’ [defendant] ‘nevertheless avoids liability by showing that … its decision to discharge [plaintiff] was necessary because [plaintiff] refused to take the FFD examination.’ ” (Kaosupra, 229 Cal.App.4th at p. 453.)

Secondary Sources

2 Witkin, California Evidence (5th ed. 2012) Witnesses § 540
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.202 (Matthew Bender)