California Supreme Court Rules Part-Time Employment During Leave Does Not Bar Leave Eligibility

Employers Need Not Seek Second or Third Opinions to Challenge

Posted: April 18, 2008

Making the California Family Rights Act more difficult for employers to administer, the California Supreme Court ruled that an employee is not automatically disqualified from taking leave for a “serious health condition” simply because the employee holds a part-time job for another employer performing work similar to her full-time job. Lonicki v. Sutter Health Central, No. S130839 (Cal. Apr. 7, 2008). The CFRA (Cal. Gov. Code §§ 12945.1, 12945.2), like the federal Family and Medical Leave Act, allows qualifying employees up to 12 weeks of unpaid leave for the employee’s own “serious health condition that makes the employee unable to perform the functions of the position of that employee.” Cal. Gov. Code § 12945.2(c)(3)(C).

Reversing summary judgment in favor of the employer, the California Supreme Court found that a trial was necessary to resolve the factual dispute of whether the employee had a “serious health condition.” The Court also ruled that an employer is not precluded from contesting an employee’s CFRA eligibility if it chooses not to seek second and third medical opinions, as permitted by the CFRA.

The plaintiff worked as a technician in the employer’s sterile processing department. In 1997, the employer became a level II trauma center, and the employee’s workload increased and, according to the plaintiff, as did her stress level. Nevertheless, in January 1999, while continuing to work for the employer, the plaintiff began working 20 hours each weekend for another hospital, doing a similar job. In July 1999, after the plaintiff’s supervisor notified her that her shift has been changed to start at 12:00 p.m., instead of 8:00 a.m., and end at 8:30 p.m., the plaintiff left work in tears. She later told her supervisor that she was too upset to work.

After her supervisor requested a medical authorization for her absence, the plaintiff submitted a note from a family nurse practitioner requesting a one-month leave of absence for “[m]edical reasons.” The employer’s occupational health physician examined the plaintiff and concluded that she was able to return to work without restrictions. The plaintiff did not return to work but told her supervisor that, based on her own physicians’ advice, she would return no sooner than August 27th. It was agreed with the plaintiff’s union that the plaintiff could take paid time off, not medical leave, until August 23rd. The plaintiff’s supervisor sent a letter to the plaintiff stating that she must return to work by August 23 or be terminated. She did not return to work and was terminated. Throughout this time, the plaintiff continued to work part-time for the other employer. After her termination, she began working full-time for the other employer.

The plaintiff alleged violations of the CFRA to the state Department of Fair Employment & Housing. After receiving a right-to-sue letter from DFEH, she sued the employer for violations of the CFRA.

The employer moved for summary judgment, arguing that the plaintiff was not entitled to medical leave under the CFRA because her ability to continue at her part-time job demonstrated that she did not have a “serious health condition [that made her] … unable to perform the functions” of her full-time job, as required by the CFRA. The plaintiff argued whether she had a “serious health condition” was a question of fact. Further, the plaintiff contended that the employer’s failure to submit the dispute to a jointly chosen health care provider precluded it from arguing that plaintiff did not satisfy the statutory criteria for medical leave.

Under the CFRA, if an employer doubts the validity of an employee’s health certification, it may require, at its expense, the employee to obtain the opinion of a second health care provider, designated or approved by the employer. If there is a difference between the two medical opinions, the employer may require the employee to obtain a third opinion, again at its expense, from a jointly approved health care provider. Cal. Gov. Code § 12945.2(k)(3)(C). The third opinion is “binding on the employer and the employee.” Cal. Gov. Code § 12945.2(k)(3)(D).

The trial court granted summary judgment for the employer, agreeing that the part-time job “showed that [the plaintiff] could perform the essential functions of her job” and rejecting the plaintiff’s preclusion argument. The Court of Appeal affirmed, and the plaintiff appealed to the California Supreme Court.

On appeal, the plaintiff argued that the relevant inquiry was whether a serious health condition made her unable to do her job for the employer, not her ability to do her essential job functions “generally.” Siding with the plaintiff, the Supreme Court found support for its position in federal case law interpreting the FMLA. Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858 (8th Cir. 2000). In Stekloff, the plaintiff, a psychiatric nurse, was fired for “job abandonment,” and she sued for violations of the FMLA. The trial court granted summary judgment to the employer because, at the time of discharge, the plaintiff was working part-time as a nurse for a different employer. The U.S. Court of Appeals for the Eighth Circuit reversed, holding that “a demonstration that an employee is unable to work in his or her current job due to a serious health condition is enough to show that the employee is incapacitated, even if that job is the only one that the employee is unable to perform.” Stekloff, 218 F.3d at 861. The relevant inquiry is “whether an employee is able to perform the essential functions of her job… in her current environment.” Id. at 862.

Following the Stekloff reasoning, the California Supreme Court ruled that the fact a serious health condition may prevent an employee from an assigned position does not indicate that the employee is incapable of doing a similar job for another employer. Rather, courts should examine whether the employee is unable to perform the functions of the position assigned to the employee by the employer. The Court further stated that the plaintiff’s ability to work part-time for a different hospital doing tasks virtually identical to those she claimed she was unable to perform for the employer was “strong evidence” that she was capable of doing her full-time job, but not “dispositive.” Accordingly, the Court reversed summary judgment, concluding that whether the plaintiff had a serious health condition was in dispute and an issue for trial.

Addressing the plaintiff’s argument that the employer’s failure to use the dispute resolution procedures in the CFRA barred it from challenging whether she had a serious health condition, the Court concluded that the statute’s permissive language did not require an employer to obtain a second or third opinion. The employer can deny the employee’s request for leave or discharge the employee for failing to come to work, risking a lawsuit and potential liability for a CFRA violation. To avoid such risks, the employer may use the dispute-resolution mechanism. However, the employer’s failure to do so will not bar it from asserting “that it was justified in firing plaintiff because she did not meet the statutory requirement of having a serious health condition that made her unable to do her job.”

This opinion complicates employers’ obligations in administering family and medical leave policies. California employers should review their family and medical leave of absence policies to ensure that an employee’s holding another position while on leave does not automatically result in a denial of leave or termination. In addition, although not seeking second or third medical opinions will not be precluded employers from contesting an employee’s leave eligibility, as a practical matter, it may be difficult for an employer to challenge an employee’s eligibility without such opinions. If an employer intends to seek a second or third medical opinion, the employer should require the health care provider to consider the employee’s ability to perform the essential job functions in the current work environment. Because medical leave situations are so fact-sensitive, employers should consult with counsel and carefully evaluate cases where an employee’s eligibility is in doubt.

Jackson Lewis attorneys are available to answer inquiries regarding this case and assist employers in achieving compliance with workplace laws.