April 7, 2008 California Supreme Court Addresses CFRA Rights of Employee Who Works Similar Job During Medical Leave
Yesterday, the Supreme Court of California issued its decision in Lonicki v. Sutter Health Central. The court held that an employee's work at another, almost identical job, while on a medical leave from his or her original employer, is not conclusive evidence that the employee is able to do the original job. Interestingly, the court did hold that an employer may challenge an employee's requests for medical leave even if it did not follow the California Family Rights Act's ("CFRA") procedures for obtaining an independent physician's assessment of the employee's health.
Lonicki worked in the housekeeping department at Sutter Health Central ("Sutter"). During her tenure, the hospital was upgraded to treat more traumatic patients, thereby increasing her workload and stress. At that same time, Lonicki's supervisor and director resigned and were replaced. As a result of these changes, Lonicki experienced stress and depression for which she sought medical care. Lonicki's treating physicians provided her with certification documents to support her requests for medical leave under CFRA.
Sutter initially authorized Lonicki's leave. Later, Lonicki was examined by a physician chosen by Sutter who concluded that Lonicki was able to return to work immediately and without restriction. Upon receiving this evaluation, Sutter declined to continue Lonicki's medical leave, and instead offered her use of her accrued paid time off. When Lonicki failed to timely return to work, Sutter terminated her employment. In the meantime, while still on leave at Sutter, Lonicki worked at another hospital performing nearly identical job functions. As a result, when Lonicki sued under the CFRA, Sutter argued that she did not have a "serious health condition" that rendered her "unable to perform the functions of [her] position" because she was able to perform essentially the same work for another employer.
The lower court dismissed Lonicki's claim, agreeing with Sutter's position, and the Court of Appeal affirmed. However, the Supreme Court disagreed, holding that there was a triable issue of fact as to whether Lonicki was unable to perform her job at Sutter even though she was still able to perform similar tasks at another location. The court acknowledged that her ability to "generally" perform her essential job functions is strong evidence she was capable of performing her full-time job at Sutter, but stated that this evidence was not "conclusive," and could be rebutted by Lonicki at trial.
Notably, the Supreme Court did hold that although CFRA allows employers to seek the binding opinion of a third doctor if the employee's doctor and the employer's doctor disagree regarding the employee's ability to work, the failure to seek a third opinion does not bar an employer from raising the issue of the employee's ability to work in any subsequent litigation.
What This Means
If an employer learns that its employee, who is on a medical leave, is performing identical work for another company, the obvious temptation is to immediately presume that the employee's absence is inappropriate. However, given the Supreme Court's ruling, this presumption is risky. Instead, it is prudent to take steps to determine why the employee contends that this alternative work is distinguishable, and why the employee is able to be perform that work. At the very least, the employer may firm up the employee's version of the facts so that they are less as likely to evolve in the hands of a sharp attorney.
This case is good news to the extent that it permits employers to question an employee's need for medical leave under CFRA, even without obtaining a binding decision from a third health care provider. However, as a practical matter, an employer who disagrees with a health care provider's opinion should seek the opinion of at least one other health care provider to be sure that its opinion is well supported, and obtaining a third and binding opinion is prudent because it is more likely to avoid litigation.