California Supreme Court Issues Divided Opinion on Important CFRA Issues
By Connor Moyle
On Monday, the California Supreme Court decided two issues arising under the California Family Rights Act (“CFRA”). The Court’s decision in Lonicki v. Sutter Health Central addressed the following questions, deciding one in favor of the employer and one in favor of the employee:
1. When faced with conflicting medical opinions on whether an employee is unable to perform her job, is an employer required to obtain a “tie-breaking” medical opinion in order to preserve its right to challenge the employee’s subsequent CFRA claim?
2. Can an employee who works a similar job for another employer on a part-time basis still sue based on a claim that she was not capable of performing her job?
Background
The plaintiff worked at a Roseville, California hospital, first in the housekeeping department and then as a certified technician in the sterile processing department. She claimed her work-related stress greatly increased when the hospital became a level II trauma center in 1997, and when she began working under a new supervisor.
In July of 1999, the plaintiff left work after her supervisor informed her that her shift was being changed and denied her request for a vacation. She claimed she was too upset to work and sought medical treatment. The plaintiff saw a doctor who gave her a note for a one-month leave of absence for “medical reasons” which she presented to her employer. The defendant hospital then directed her to see another doctor, who determined that she could return to work without any restrictions. The plaintiff also went to see her primary care physician, who referred her to a psychologist. She indicated that, based on medical advice, she would not return to work prior to August 27.
The employer determined that it would allow the plaintiff to use paid time off, but directed her to return to work by August 23 or face dismissal. On August 26, the plaintiff saw a psychiatrist who determined that the plaintiff was “disabled by major depression” and recommended that her medical leave be extended through September 26. The plaintiff brought the note to the hospital, but the human resources department informed her that she had been terminated for failure to appear at work on August 23 and 24.
An employer is not required to obtain a “tie-breaker” opinion when the employee’s doctor disagrees with the employer’s doctor.
The CFRA provides for an unpaid leave of absence for up to 12 weeks for several possible reasons including “an employee’s own serious health condition” that “makes the employee unable to perform the functions” of his/her position. An employer can require the employee to submit certification of a serious health condition from the employee’s healthcare provider. An employer may also choose to pay for the employee to obtain a second opinion from a healthcare provider designated by the employer if the employer has reason to doubt the validity of the first opinion. Finally, if the two healthcare providers disagree, the employer may require a third opinion from a healthcare provider approved by both parties. The third opinion is binding on both parties.
The plaintiff in Lonicki argued that she had a “serious health condition” that made her unable to perform her job and that Sutter improperly denied her CFRA leave. Plaintiff argued that the hospital was precluded from challenging that Plaintiff had a serious health condition because it had not exercised its option to obtain a third medical opinion under the CFRA’s dispute resolution procedures.
The Court rejected the plaintiff’s argument and determined that, under the statutory language of the CFRA, an employer merely has the option to request a tie-breaking opinion if the first two doctors disagree. Failure to do so does not prevent the employer from challenging a later claim that the employee suffered from a serious health condition that rendered her unable to do her job. The court partially relied on several federal opinions reaching similar conclusions under the Family Medical Leave Act (“FMLA”) and declined to follow other federal authority to the contrary.
An employee who performs a substantially similar job for another employer can still claim that she was unable to perform her job.
During her “leave” from Sutter and at the time of her termination, the plaintiff worked part-time at another hospital performing duties substantially similar to those she performed for Sutter. The trial and appellate courts in Lonicki both determined that Sutter was entitled to summary judgment on the plaintiff’s CFRA claim because the plaintiff’s ability to work part-time at another hospital performing substantially similar duties conclusively demonstrated that she could also perform her job for the defendant. In a sharply divided and surprising opinion, the Supreme Court disagreed and determined that the plaintiff could bring her claim despite holding a similar second job.
In reaching its conclusion, the Supreme Court determined that the Court of Appeal erred in holding that an employer must grant medical leave under the CFRA only if the employee is unable to perform her essential job functions “generally, rather than for a specific employer.” Instead, the Supreme Court stated, the relevant inquiry was whether the plaintiff’s alleged serious health condition rendered her unable to do her job at the defendant’s hospital.
The Court noted that the difference between a part-time job and a full-time job may be significant to a CFRA inquiry because an employee may be able to work a part-time job despite suffering from a “serious medical condition” that renders the employee unable to work full time. The Court also pointed out that the alleged sources of plaintiff’s job-related stress (mainly a particular supervisor) were unique to her job with the defendant. Consequently, the Court determined that the plaintiff’s ability to work part time at another hospital did not conclusively establish her ability to perform similar duties at the defendant’s hospital. As a result, the Court reversed the award of summary judgment.
In a dissenting opinion joined by two other Justices, Justice Chin criticized the Court’s holding on this issue, stating that it was inconsistent with the legislative purpose and history behind CFRA’s enactment. According to Justice Chin, allowing employees to obtain and hold substantially similar alternative employment while claiming inability to work their usual job, is fraught with potential for abuse. Indeed, under the Court’s ruling, an employer faced with this situation potentially would be required to continue providing benefits for an employee on leave, even if the employee was performing work for, and being paid by, another employer.
Implications
The Court’s determination that holding a similar job does not prevent an employee from claiming she was unable to perform her job for a particular employer means that employers will find summary judgment harder to obtain in similar cases. It also means that employers may face liability if they terminate an employee on leave simply because the employee obtains alternative employment during that leave. Many employers have policies providing for termination of employment in these circumstances, and such policies are problematic in light of the Court’s ruling.
Additionally, employers should not interpret Lonicki as an indication that “tie-breaker” opinions are always unnecessary or inadvisable when faced with conflicting medical opinions regarding a claim of entitlement to leave. Although Lonicki makes clear that California law does not require an employer to seek a “tie-breaker” opinion, the decision does not control future decisions by federal courts addressing the same issue under the FMLA. Furthermore, because a tie-breaker opinion binds both parties, requesting the opinion may often provide a relatively inexpensive means of resolving disputes in their early stages. Consequently, employers should not adopt any blanket policy regarding whether to seek a “tie-breaker” opinion and should evaluate each case on its own facts.
If you have questions about the implications of the Lonicki decision, please contact one of our offices.