Something weird has been going on lately. In recent months, the California Supreme Court issued a series of pro-employer, common sense rulings, which, among other things: allowed employers to terminate employees for smoking weed; required disability plaintiffs to prove they can actually perform their job; and permitted employee reimbursements in ways that made sense. With things so off kilter, I’ve had almost nothing to protest in my writings.1 So it was with great interest that we in the legal community (and I, in particular) watched the case of Lonicki v. Sutter Health Central.
In Lonicki, an employee claimed she couldn’t perform her job for medical reasons, but actually performed virtually the same job for a competitor while on leave. Surely this logical and sensible Court would allow the employer to terminate her, right? Wrong. 2
The oddly familiar facts
Ms. Lonicki was a certified technician who worked at a Sutter hospital in Roseville. After her hospital was upgraded to a Level II trauma center, and after receiving a new supervisor and increased work hours, Ms. Lonicki sought a 30-day leave for a stress-related disability3 under the California Family Rights Act (CFRA). The CFRA is California’s answer to the federal Family Medical Leave Act, allowing employees long leaves of absence for qualifying conditions. Ms. Lonicki provided Sutter with a doctor’s note substantiating her claim that she suffered from a “serious health condition” that made her “unable to perform the functions”4 of her position, as required by the CFRA.
In accordance with its own rights under the CFRA, Sutter then required Ms. Lonicki to obtain a second opinion from its doctor. After meeting with her for two to three minutes, he declared her stress-free and cleared Ms. Lonicki to work with no restrictions.5 Two doctors, two opinions. What to do? Although CFRA then permitted Sutter to seek a third, binding opinion, Sutter opted not to do so. Instead, it informed Ms. Lonicki that she could take the full amount of leave she requested, but that she would have to return to her position at the conclusion of that period.
During the time Ms. Lonicki was on leave, she continued working part-time in a substantially similar position at Kaiser. That’s right. While maintaining her right to her own company’s benefits, Ms. Lonicki went to work for a competitor. Nevertheless, at the end of the 30-day leave, Ms. Lonicki presented Sutter with another doctor’s note stating she was “disabled by major depression” that was “work related” and thus needed additional leave. Based on its own doctor’s assessment—and the fact that Ms. Lonicki was working in a similar job for another hospital—Sutter concluded that Ms. Lonicki did not, in fact, suffer from a “serious health condition” and terminated her employment.6 Logically, Ms. Lonicki sued.7
Employer wins, chaos rules!
The Supreme Court first considered whether Sutter could terminate Ms. Lonicki’s employment without seeking the additional medical certifications provided for in the CFRA. It held that the employer was entitled to do so; but did so at its own peril. The Court noted that, although the CFRA permits a third opinion when employee and employer doctors disagree, and makes such an opinion biding, there was nothing in the language of the CFRA mandating it.8
Employers rejoiced. The Court had once again ruled sensibly, further upsetting the natural laws of the employment law world. The Court’s message was clear: Failure to follow the CFRA’s dispute-resolution mechanism does not bar you from later claiming the employee didn’t suffer a serious health condition. Once you waive it, though, you can’t get it back. A sensible and logical result. Could the luck continue?
Employee wins, the balance is restored!
No. Employers weren’t as lucky with respect to the second issue. That question was whether an employee who takes protected leave from one job can still qualify as having a serious medical condition even if she works the same job during her protected leave. A split Court held that she might! The Court reasoned that, while working another position is evidence that the employee’s condition might not qualify for protected leave, that fact, by itself, wasn’t determinative. The Court sent the parties back to court and told them to fight about it some more.
In all fairness, the Court was constrained by the language of the CFRA, and its opinion was fairly well-reasoned. That cannot change the absurdity of the result, however. Just because an employee can perform her position for someone else doesn’t mean she can necessarily do so for you.
The lessons of Lonicki are plentiful. Consider carefully whether to request a third doctor’s opinion under the CFRA before giving up your right to do so. Be extremely cautious when substituting your judgment for that of a doctor, particularly when deciding whether to terminate on this basis. And finally, never underestimate California’s ability to bring absurdity and wackiness to the employment cosmos.
1 Joking, of course.
2 Proving once again that logic has no place in the application of California’s employment laws.
3 Mark this day. The most subjective and difficult-to-refute disability claim just got a major boost.
4 The magic words. Uh oh.
5 A company doctor found nothing wrong in a three-minute exam? Shocking.
6 As stated in footnote number one, logic has no place in employment law.
7 I stand corrected.
8 Wait a minute, this seems like a somewhat employer-friendly position? What is going on here?
