On April 7, 2008, in Lonicki v. Sutter Health Central, the California Supreme Court answered two previously unanswered questions about the California Family Rights Act (CFRA). Employers won one, and lost one. First, the Court held that the CFRA permits employers to defend litigation by challenging an employee's need for a leave of absence without having first resorted to the "third opinion" option (i.e., obtained a binding third opinion, where the first two opinions differed). Second, the fact that the employee is working elsewhere, even in a substantially similar job, does not necessarily mean that the employee is disqualified from obtaining CFRA leave.
The Court's ruling underscores the importance of some basic principles: employers must deal with leave of absence requests on a case-by-case basis, consider carefully their legal options for challenging a questionable request, and make unemotional decisions based on the provable facts.
The CFRA, which applies to California employers with at least 50 employees, allows employees who have a “serious health condition” to take up to 12 weeks of unpaid medical leave per year if they have worked for the employer for at least a year and worked at least 1,250 hours during the previous 12 months. “Serious health condition” is defined as a physical or mental condition that requires medical treatment and renders the employee “unable to perform the functions of the position of that employee.”
The case involved a certified technician, Lonicki, who worked for a Sutter hospital in Roseville. When her workload was increased and she got a new supervisor, Lonicki sought a 30-day leave for a stress-related disability. Lonicki provided a doctor's note attesting to her need for leave. Sutter required Lonicki to see its doctor for a second opinion. The Sutter doctor said that Lonicki could work with no restrictions. Because of the passage of time and the intervention of the union, Lonicki was told she could take the 30-day leave she requested, but she would have to return at the conclusion of that period or risk termination.
At the end of the 30 days, Lonicki brought in a note from another doctor, a psychiatrist, saying she required an additional 30 days of leave for “major depression” that was “work related.” Based on its doctor's assessment to the contrary and the fact that Lonicki was working part-time as a certified technician at a Kaiser hospital, Sutter concluded that Lonicki was not entitled to leave and terminated her employment. Lonicki sued for violation of the CFRA. Sutter prevailed on summary judgment and the Court of Appeal affirmed.
California Supreme Court addresses two key questions
The Supreme Court took the case to answer the following two questions:
- Is the employer required to get a third, tie-breaking doctor's opinion in order to challenge the certification of an employee's doctor that the employee cannot work? By a 6-1 vote, the Court said no. While the CFRA permits an employer to obtain a third opinion when the employee's and the employer's doctors disagree, and provides that the third opinion will be “binding on the employer and the employee,” the employer is not required to get the third opinion. Of course, if the employer decides not to get the third opinion and to conclude on other grounds that the employee does not have a serious health condition warranting leave, the employer does so at its peril.
- If the employee is working for a different employer performing similar duties (albeit in a different environment), does that prove that the employee does not have a serous health condition and therefore isn't entitled to a CFRA leave? The Court again said no, this time by a 4-3 vote. The Court examined the wording and purpose of the CFRA and concluded that the phrase “unable to perform the functions of the position of that employee” should be interpreted to mean “unable to perform the functions of the job assigned to the employee by his or her employer.” Citing a federal appellate court that came to the same conclusion under the federal Family and Medical Leave Act (FMLA), the Court said “the inquiry into whether an employee is able to perform the essential functions of her job should focus on her ability to perform those functions in her current environment.” (Emphasis added).
Therefore, the Court concluded that whether Lonicki was or was not able to perform her job at Sutter was a disputed fact that must be resolved at trial and not by way of summary judgment. As the Court said, Lonicki's “ability, during the period when she was seeking medical leave from [Sutter], to work part time for a different hospital (Kaiser), doing tasks virtually identical to those she claimed she was unable to perform for [Sutter] is strong evidence that she was capable of doing her full-time job” at Sutter, but the evidence is not a conclusive defense.
Lessons to be learned
There are at least three important lessons for employers from Lonicki. First, consider getting a third tie-breaking medical opinion when you have a second opinion that says the employee's doctor's certification is wrong. While this is not practical in every case, in those cases where it is, this so-called “dispute resolution procedure” can save a lot of time and expense.
Second, when evaluating a request for time off, or for any other sort of accommodation, from an employee who is, basically, unable to handle the pressures of the job (even when other employees are able to do so), remember that both the CFRA and California's disability discrimination laws require an unemotional, medically based analysis.
And finally, remember that California's employment laws increasingly call for individualized responses to individual employee situations. The “one-size fits all,” “our policy won't permit it” response to an employee's request for a leave of absence or for other accommodation might have worked in 1988 but won't work in 2008. This is not to say that employees are entitled to whatever accommodation they ask for whenever they ask for it, but it is to say that employers are well served by examining the specific facts of the specific situation and making a decision on that basis—and being careful to keep the evidence that proves they engaged in that careful analysis.