A PAIR OF DECISIONS PROVIDES GUIDANCE ON HANDLING CFRA CLAIMS

COURT CLARIFIES "SERIOUS HEALTH CONDITION"

In April, the California Supreme Court held that (1) an employee's performance of a similar job for another employer, after she had requested CFRA leave from her first employer, was not conclusive evidence that the employee did not have a serious health condition under CFRA, and (2) an employer is not required to obtain the opinion of a health care provider jointly chosen by the employer and the employee in order to challenge an employee's CFRA certification.

Background:

In Lonicki v. Sutter Health Central, 43 Cal. 4th 201 (2008), the plaintiff, who was employed by Sutter Health, provided the company with a medical certification attesting to her need for CFRA leave. She claimed to be suffering from job-related stress due to the increasing demands of her job and her supervisor. However, a Sutter Health physician concluded that Lonicki, a full-time employee, could return to work without any restrictions. Sutter Health did not require Lonicki to obtain a binding third opinion with regard to whether she had a serious health condition, and later terminated her for failing to return to work. Sutter Health also learned that during the time Lonicki claimed to be unable to work due to a serious health condition, she was working a part-time job at a Kaiser hospital. The Kaiser job was substantially similar to her job at Sutter Health.

Lonicki sued for violation of CFRA. The trial court granted summary judgment for Sutter Health, holding that Lonicki's work at Kaiser conclusively demonstrated that she was able to perform her job at Sutter Health, and thus was not suffering from a serious health condition. The Court of Appeal affirmed, and Lonicki appealed.

The Supreme Court's Decision: The California Supreme Court reversed, and held that the language of CFRA, which provides that an employee is entitled to a medical leave based on a "serious health condition that makes the employee unable to perform the functions of the position of that employee," means that the employee is unable to perform the functions of "the job assigned to the employee by his or her employer." The Court observed that while Lonicki's ability to perform virtually identical tasks for Kaiser was "strong evidence" of her ability to work, it did not conclusively establish that she could perform her Sutter Health job. Accordingly, Lonicki was entitled to a trial on the question of whether she had a "serious health condition."

In addition, the Supreme Court held that Sutter Health was not required by CFRA to obtain a binding third opinion before challenging the certification provided by Lonicki's physician.

What This Means for Employers:

It is not uncommon for employees in certain industries to work more than one job, and as Lonicki confirms, the fact that an employee works one job while requesting CFRA leave from another employer does not necessarily mean that the employee does not suffer from a serious health condition within the meaning of CFRA. Lonicki echoes earlier cases interpreting the FMLA, and makes it clear that employers must carefully evaluate whether an employee who requests CFRA (or FMLA) medical leave has a "serious health condition" within the meaning of the law. And, while employers are not required to seek a tie-breaker third opinion to establish that an employee does not have a serious health condition, an employer who fails to take advantage of this procedure and denies the leave assumes a substantial risk that the employee will challenge the denial in court.

COURT CLARIFIES NOTICE REQUIREMENT

In Avila v. Continental Airlines, Inc., No. B196603 (Aug. 11, 2008), a California Court of Appeal held that employees do not have to ask for leave specifically or invoke their CFRA rights in order to put their employer on notice of a CFRA-protected leave. Pre-printed medical forms documenting an employee's hospitalization or condition, or oral notification of the need for leave, may be sufficient to put the employer on notice for purposes of CFRA.

Background:

Avila, a CFRA-eligible employee, called in sick for an emergency medical condition, but did not specifically ask for CFRA leave. Upon his return to work, Avila submitted forms from Kaiser reflecting that he had been hospitalized for four days. Avila was charged with two occurrences under the employer's no fault attendance policy, and was later terminated after another occurrence. Avila sued, alleging that he had been terminated in retaliation for exercising his CFRA rights.

The Court's Decision:

The employer argued that Avila did not properly request CFRA leave. The court disagreed, observing that an employee does not have to ask specifically for a leave or invoke the law to provide sufficient notice of the need for CFRA leave. To the contrary, the court concluded that in a situation involving a medical emergency, notice on a hospital's preprinted form that an employee had been hospitalized could be viewed as a request for CFRA leave. At that point, the burden was on the employer to ask for further information from the employee to determine whether the absence should be treated as CFRA-protected leave. The court explained that an employer should not be able to terminate an employee who is absent and known to be sick or injured without first determining if the employee qualifies for and wants leave. In so ruling, the court relied on regulations that allow for verbal notice of the need for CFRA leave.

What This Means For Employers:

Employers should be careful when disciplining employees for absences that might be CFRA-protected. If the available facts suggest that a serious health condition may be involved, the employer should ask for additional information, regardless of whether the employee has given written or oral notice of the need for leave. Avila makes clear that a policy purporting to require written notice of the need for leave will not relieve the employer of its obligation to elicit the relevant information to determine if a serious health condition is involved, before taking adverse action against an employee.