Employers may be surprised to learn that working at one job while on medical leave and receiving benefits from another may be acceptable in some circumstances. What those circumstances are, however, may not be known until a jury decides.
Under the California Family Rights Act (CFRA), the California equivalent of the federal Family and Medical Leave Act (FMLA), an employer with 50 or more employees may be required to provide eligible employees with up to 12 weeks of unpaid "family care and medical leave" on the birth or adoption of a child, serious illness of a family member, or when an employee's own serious health condition "makes the employee unable to perform the functions of the position of that employee." A serious health condition may include depression and work-related stress where the employee is under continuing treatment by a health care provider.
In Lonicki v. Sutter Health Central (April 7, 2008), the California Supreme Court ruled that an employee's ability to work a second job while on medical leave from another can be evidence that he or she is not suffering from a serious health condition, but it is not conclusive. The Court also held that employers are not required to seek an independent opinion from an third health care provider when there are two conflicting opinions, and failure to do so does not bar an employer from asserting that the employee was not entitled to medical leave under the CFRA.
The Sutter Case
Factual Background
Plaintiff Antonina Lonicki was a certified technician at Defendant Sutter's hospital sterile processing department in Roseville. After the hospital became a level II trauma center in 1997, Plaintiff's workload increased significantly, and shortly thereafter, a new supervisor allegedly increased her stress and caused her to consult a doctor. In January 1999, Plaintiff began working weekends at another hospital, in addition to her job at Sutter.
On July 26, 1999, the new supervisor changed Plaintiff's shift and denied her request for vacation. Plaintiff went home in tears and told her supervisor she was too upset to return to work. The supervisor requested that Plaintiff obtain medical authorization for her absence. Plaintiff received a note for a one-month leave of absence for "medical reasons" from a nurse practitioner and was referred to a therapist for work-related stress.
Approximately one week later, Sutter sought a second opinion of Plaintiff's medical condition through its own doctor. After speaking to Plaintiff for a only a few minutes, the doctor concluded that she was able to return to work with no restrictions. A Sutter director telephoned Plaintiff and told her to return to work or face dismissal. Plaintiff informed Sutter that, on the advice of her doctors, she could return no sooner than the end of her one-month leave. Plaintiff did not return to work at Sutter and continued her weekly visits with a psychologist until the end of August. During those visits Plaintiff was diagnosed with "major depression" related to work, and received a doctor's note recommending an additional month of "sick leave." When Plaintiff delivered the note to Sutter, she learned that she had been discharged for failing to return to work during her original leave of absence. Plaintiff had continued working part-time at the other hospital during this period.
The Superior Court granted summary judgment to Sutter on Plaintiff's CFRA claim, finding that she was capable of performing her job at Sutter because she continued to work a substantially similar part-time job at the second hospital while on leave from Sutter. In 2004, the California Court of Appeal affirmed the lower court's decision, finding that the question was whether Plaintiff could perform her job functions generally, not whether she could perform the specific job at Sutter.
California Supreme Court Decision
In a 4-3 ruling, the California Supreme Court held that an employee's ability to work a second job while on medical leave from another might constitute evidence that he or she is not suffering from a serious health condition, but it is not conclusive. "When a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer," Justice Kennard wrote for the majority. Reversing the Appellate Court, the majority held that the test under the CFRA is whether an employee is unable to perform her job for the specific employer, not her ability to perform her essential job functions "generally."
The three justices who dissented asserted that the legislation did not contemplate that an employee would take medical leave from one job in order to work at a second job while still receiving benefits from the first job.
The Court also held 6-1 that an employer's failure to seek a binding opinion from an independent health care provider when there are two conflicting opinions does not bar an employer from later asserting that the employee was not entitled to medical leave. Under the CFRA, the employer may require the employee to provide a certification of the serious health condition by a health care provider. If the employer has reason to doubt the certification, it may require the employee to obtain a second opinion of the employer's choosing. If there is a difference between the two, the employer may require that the employee obtain a third opinion, from a jointly chosen provider, and the opinion of the third provider will be binding. However, Justice Kennard found that "the pertinent statutory language does not require an employer faced with two conflicting health care provider opinions to obtain a binding decision from a third health care provider, and it does not say that an employer who fails to obtain such a decision will be barred, in litigation with the employee, from claiming that the employee did not suffer from a serious health condition making the employee unable to work."
Justice Moreno dissented from the majority, writing, "the statute expressly contemplates that an employer may . . . entertain doubts about an employee's certification, but makes clear that those doubts ultimately must be confirmed through second and third medical opinions" rather than through the courts. Noting that a federal district court in California had come to the opposite conclusion based on identical language in the FMLA, he urged the legislature to clarify the issue.
Implications For Employers
Though the California Supreme Court refused to create a bright-line test on either issue, the following points may prove instructive to employers.
First, this serves as an important reminder that the CFRA limits the type of information an employer can require an employee to provide in a medical certification. "[A]n employer may not require an employee seeking medical leave to provide detailed intimate and private information about a serious psychiatric condition that has made the employee unable to do the work, nor may the employer deny the employee's request for medical leave for failing to provide such information."
Second, an employer's failure to use the CFRA's dispute resolution procedure - obtaining a binding opinion by a neutral health care provider when there are two conflicting opinions - does not bar the employer from asserting in litigation that it was justified in firing an employee because he or she did not suffer a serious health condition. However, if the employer follows the opinion of the second provider and terminates the employee, it takes the risk that a jury might later disagree.
Third, even if an employee is on medical leave due to inability to perform the essential functions of his or her job, yet continues performance at a similar second job, this is not conclusive evidence that he or she does not suffer from a serious health condition and is capable of performing the duties specific to his or her job under the first employer. Disputes concerning the severity of an employee's medical conditions and the employee's entitlement to medical leave involve factual questions that ultimately must be decided by a jury.
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