The federal Family and Medical Leave Act (FMLA) and California’s equivalent, the California Family Rights Act (CFRA), present various challenges to employers. The CFRA, like the FMLA, allows eligible employers up to 12 weeks of unpaid leave for, among other things, the employee’s own “serious health condition that makes the employee unable to perform the functions of the position of that employee.” Earlier this year, the U.S. Department of Labor (DOL) issued proposed revisions to the FMLA regulations that unfortunately do little to simplify the administration of leaves of absence. Now the California Supreme Court has further complicated the situation. While awaiting the final FMLA regulations, California employers should carefully review the Court’s decision in Lonicki v. Sutter Health Central.
In Lonicki, the Court provided guidance on two key CFRA issues: (1) whether an employee on FMLA leave from one employer may simultaneously work for another employer; and (2) whether an employer is required to obtain a third medical opinion to ascertain an employee’s eligibility for leave, if the employer uses the second opinion procedures to challenge an employee’s initial FMLA/CFRA medical certification. The implications of the Court’s decision are significant for California employers.
Antonina Lonicki worked for Sutter Health as a technician at one of its hospitals. Her duties included preparing sterilized equipment used in patient care. Lonicki claimed that in 1997, when the hospital was designated as a trauma center, her workload significantly increased and her supervisor caused her stress. Around the same time, Lonicki accepted a part-time position with Kaiser Permanente that required her to perform generally the same duties as her position for the hospital, although in an environment Lonicki perceived as less stressful.
In mid-1999, Lonicki’s supervisor at the hospital changed her work schedule. As a result, Lonicki became upset and informed her supervisor she could not work due to the stress caused, in part, by the change in schedule. When the supervisor requested medical documentation to substantiate her need for time off, Lonicki provided a note from her medical provider stating that she would be absent for one month due to “medical reasons.” The employer approved Lonicki’s request and designated the time off as FMLA/CFRA leave. Lonicki continued to work part-time for Kaiser while on leave.
Because of Lonicki’s prior complaints about the change in her work schedule and questions about the validity of her medical certification, the hospital sent her for a “second opinion” to determine if she was, in fact, unable to perform the essential functions of her position. The medical provider who provided the second opinion, the organization’s occupational health physician, determined that Lonicki could return to work immediately without restrictions. The supervisor then instructed Lonicki to return to work or face termination. Instead, Lonicki obtained additional medical documentation stating that she required more leave due to her medical condition. The hospital then agreed to provide Lonicki a short period of additional time off (designated as sick leave, and not CFRA leave), but informed her that she would be terminated if she did not return to work at the end of her period of approved sick leave. When Lonicki failed to do so, the hospital fired her.
Lonicki subsequently filed suit, claiming the hospital violated the CFRA by not seeking a “third opinion” regarding her medical condition, and by terminating her employment when she provided documentation seeking additional time off. The hospital moved for summary judgment, arguing that because Lonicki continued to work for Kaiser during her leave of absence, she did not have a “serious health condition” and therefore did not qualify for CFRA leave. In other words, the hospital argued Lonicki had a “selective” disability: she could perform the functions of her position, but not to do so for the hospital from which she sought leave. The trial court and the California Court of Appeal agreed with the hospital.
Lonicki appealed to the Supreme Court on two grounds: (1) that her continued part-time work at Kaiser leave did not preclude her from taking CFRA leave from her position at the hospital; and (2) the hospital was required to obtain a third opinion about her medical condition before determining she was not eligible for CFRA leave. (The CFRA regulations provide that if an employer doubts the validity of an employee’s medical certification, the employer may obtain a second opinion from another provider of the employer’s choice, at the employer’s cost. If the employer’s medical evaluation differs from the employee’s initial medical certification, the employer may request a third opinion from a mutually agreed upon medical provider, which is binding on the employer and the employee.)
The California Supreme Court’s Decision
A divided Supreme Court remanded the case, and sent it back to the trial court. First, in a 4-3 ruling, the court held that Lonicki’s continued employment at Kaiser did not necessarily preclude a finding that she had a “serious health condition” with respect to her duties at the hospital. Relying on precedent decided under the federal FMLA, Lonicki successfully argued that the key question was whether her medical condition (stress) precluded her from performing the essential functions of her position at the hospital, not from performing the duties of any position for any employer. Although the Supreme Court stated that Lonicki’s ability to continue working for Kaiser was “strong evidence” of her ability to perform her duties for the hospital, it was not dispositive. In the Court’s view, the lower court should not have dismissed Lonicki’s case without allowing a jury to decide that issue.
The court decided 6-1 that the hospital was not required to obtain the “tiebreaker” medical opinion before concluding that Lonicki did not have a “serious health condition” and terminating her employment. The Court made clear that while an employer may opt for a third opinion, doing so is not mandatory. Recognizing the risk inherent in terminating an employee without obtaining a third opinion (i.e., that the employee is in fact qualified under the CFRA, despite the opinion of the second medical provider), the Court left it up to employers to decide whether to do so. The Court’s decision that the hospital was not required to obtain a third opinion contradicts a series of rulings by various courts that decided the same issue under the FMLA.
The Lonicki decision complicates the administration of FMLA/CFRA leave. Employers should keep the following principles in mind when determining whether an employee qualifies for FMLA/CFRA leave.
Employers should review their FMLA/CFRA policies to ensure employees are not flatly prohibited from working for another employer while on leave. Rather, employers should include language stating that employees “may” be denied FMLA/CFRA leave or terminated if they are working for other employers while on leave. Then, the employer can review the situation to determine whether the employee’s medical condition precludes the employee from performing the essential functions of the position for the employer. Of course, employers should also consider the proposed FMLA regulations and the new “service member FMLA” when updating their policies in this area.
The Court’s decision also is a reminder that under the CFRA, employers’ access to information they may require an employee to provide in a medical certification is limited. In the Court’s words: “[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.” Practically speaking, then, while an employer may gather relevant information about an employee’s serious health condition, the employer may not require information, such as the medical diagnosis, that is unnecessarily intrusive. In fact, California employers should not use the DOL’s standard FMLA medical certification form (called the WH-380) for that reason (the DOL form requests information regarding the employee’s diagnosis).
The Lonicki opinion also should motivate employers to conduct a case-by-case analysis of leave requests based on an employee’s own medical condition. Unfortunately, there is no formula or bright-line rule regarding these matters. Rather, employers must carefully consider the facts at hand, as well as applicable law, regulations, and court decisions, before making decisions regarding an employee’s eligibility for FMLA/CFRA leave. Of course, the same principle applies to employee requests for a “reasonable accommodation” under the Americans with Disabilities Act or California’s Fair Employment and Housing Act.
Finally, employers who question the validity of an employee’s FMLA/CFRA medical certification must carefully consider whether to use the statutory “dispute resolution” procedure provided by the second/third opinion process. While obtaining a third opinion is not required, employers should evaluate the risk of not doing so, particularly when conditions such as “stress” are at issue.