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The California Supreme Court Takes On Its First CFRA Case

On April 7th, the California Supreme Court issued its first opinion analyzing the California Family Rights Act (“CFRA”). In Lonicki v. Sutter Health Central, the court made two significant rulings:

1. An employer is not required to utilize the CFRA’s “tie-breaking” procedure and obtain a third medical opinion to resolve a conflict between two doctors as to an employee’s CFRA eligibility. The Lonicki court rejected the employee’s argument that failure to obtain a third medical opinion prevented Sutter Health Central (“Sutter”) from ever challenging the employee’s CFRA eligibility.

2. The fact that an employee is able to work at a similar job at the time she is requesting time off for a “serious health condition” does not conclusively establish that the employee is not eligible for CFRA leave. In this regard, the Lonicki court ruled against Sutter, whose lawyers sought to dismiss the employee’s CFRA claims based on evidence that Lonicki was working at a similar job at the same time her psychiatrist took her off of work at Sutter.

Although Lonicki does not mark a dramatic shift in CFRA law, it does provide clarity on these two issues and understanding Lonicki will assist HR professionals in their efforts to comply with CFRA requirements.

The Law

The CFRA authorizes eligible employees to receive up to 12 workweeks of leave in a 12 month period for various reasons, including recovery from a “serious health condition.” The employer may condition CFRA leave on receipt of a timely certification from the employee’s health care provider, verifying that the employee has a “serious health condition” that qualifies for CFRA leave.

If the employee's health care provider provides a timely CFRA certification, the employer has the option to seek a second opinion from its own doctor. If these two doctors disagree, the CFRA authorizes the employer to seek a “tie-breaking” third opinion from a neutral health care provider.

Lonicki v. Sutter Health Central

Beginning in 1993, Antonina Lonicki worked as a technician in the sterile processing department at Sutter Roseville Hospital. Her job duties consisted of picking up equipment and processing instruments used in patient care. In January 1999, Lonicki accepted a second job, working part-time for Kaiser Hospital and performing similar duties in its sterile processing department.

In July 1999, Lonicki’s supervisor at Sutter advised her that her work shift would change from mornings to evenings. She left the hospital in tears, and subsequently requested a one-month leave of absence. Lonicki’s request was supported by a note from a nurse practitioner.

Sutter obtained a second opinion from one of its local doctors. The company doctor concluded that Lonicki was able to return to work without any restrictions. Sutter then instructed Lonicki to come back to work or face disciplinary action.

Lonicki’s union representative intervened, and Sutter ultimately agreed to allow Lonicki to use paid time off, but not to grant her medical leave. Lonicki was advised to return to work no later than August 23, 1999. Lonicki had previously stated that she was “unable to return to work” until August 27th.

On August 26, Lonicki consulted a psychiatrist. The psychiatrist diagnosed Lonicki with work-related “major depression,” and Lonicki provided Sutter with a note from the psychiatrist, who advised her to remain off of work for another month. Sutter responded by advising Lonicki that she had been terminated for “job abandonment” based on her failure to appear for work on August 23rd. Thereafter, Lonicki filed a lawsuit alleging that Sutter’s decision to terminate her employment was a violation of her rights under the CFRA.

Sutter’s attorneys asked the trial court to dismiss Lonicki’s case, arguing that Lonicki was not eligible for CFRA leave. Specifically, Sutter argued that the fact Lonicki was able to maintain her substantially similar part-time job at Kaiser was proof that she was able to perform her job duties at Sutter; i.e., that she did not need leave to recover from a “serious health condition.” Lonicki responded that differences between the two jobs raised fact issues that should be decided by the jury. She also argued that Sutter was barred from questioning her need for CFRA-qualified leave, based on Sutter’s decision not to obtain a “tie breaking” third opinion from a neutral health care provider. Ultimately, the trial court ruled in Sutter’s favor and dismissed the lawsuit.

Lonicki appealed, but the court of appeal agreed with the trial court. Lonicki then took her case to the California Supreme Court.

The Court first addressed Lonicki’s argument that Sutter gave up its right to argue that Lonicki was unqualified for CFRA leave when it elected not to obtain a tie-breaking opinion from a third health care provider. The Court had little difficulty rejecting this argument. Since the CFRA does not impose a mandatory obligation on employers to obtain a third opinion, the Court concluded that it is simply one, non-exclusive mechanism for dispute reason. As the Court explained:

If an employer doubts the validity of [a CFRA] claim, nothing…precludes the employer from denying the employee's request for medical leave and discharging the employee if the employee does not come to work. Of course, an employer embarking on that course risks a lawsuit by the employee and perhaps a finding by the trier of fact that the employer's conduct violated the employee's rights under either the CFRA or the FMLA, or both, by denying the requested medical leave. To avoid such risks, the employer can resort to the [tie-breaker] dispute-resolution mechanism provided for by both laws.

The Court then turned to the second question: whether Lonicki’s part-time job at Kaiser Hospital prevented her from arguing that she suffered from a “serious health condition” that required time off from her job at Sutter. On this point, the Court found that a jury could credit Lonicki's testimony about the differences between her two jobs, including the number of hours, responsibilities, etc., and thus, in theory, could decide that she was qualified for CFRA leave. In this regard, the Court noted that the proper question in a CFRA analysis is not whether the employee can work in general, but rather whether the employee is able to perform some or all of the duties of the job from which she is seeking a CFRA-qualified leave.

Practical Considerations

Lonicki is a reminder to all California employers to carefully evaluate whether an employee who requests CFRA leave is entitled to the protection of the statute — whether he or she has a “serious health condition” as defined by the CFRA. The CFRA “tie breaking” procedure provides a mechanism for obtaining an unbiased answer to this question. For this reason, employers should seriously consider obtaining a third opinion in appropriate cases. Depending on the circumstances, the benefit of doing so likely outweighs the cost.

Lonicki also makes it clear that an employer cannot refuse CFRA leave simply because it learns that the employee is currently working at another job, even if that job involves substantially similar job duties. Although not intuitive, employers must bear this fact in mind when deciding whether to grant a leave request.

Finally, Lonicki illustrates the need to seek advice from employment law counsel or experienced HR professionals in addressing employee health issues. In addition to the CFRA issues addressed in Lonicki, employee health concerns may also implicate various other employment-related laws, including the federal Family and Medical Leave Act, state and federal disability discrimination laws, workers’ compensation laws, and state and federal statutes that protect employee medical records and other confidential information from inappropriate use and/or disclosure.