The Bottom Line. Under CFRA, an employer can contest an employee's doctor's claim that the employee has a serious health condition even if the employer does not seek a third opinion from a neutral doctor before doing so.
Also, if an employee takes another job while purportedly unable to work for the employer because of his or her "serious health condition," that's probably really good evidence for the employer if there's ever a trial. Don't think it's going to get the case dismissed on summary judgment, though.
Here is the thumbnail.
Facts. Lonicki gets a job with Sutter Health as a technician in the sterile processing unit. About 8 years later, the unit becomes a trauma center, and Lonicki gets a new boss who she really can't stand.
Lonicki gets doctors notes stating that she has the serious health condition of stress and depression and can't work. The employer's doctor examines her and renders a second opinion stating that's balony. Sutter Health leaves it at that and insists she come back to work. Sutter Health does not ask for a binding third opinion by a neutral doctor, as it could have under Government Code 12945.2(k)(3)(C) and (D).
In the meantime, Lonicki is working part-time at another hospital, basically doing the same job (though she claims it is slower and less stressful there). So, if Sutter Health were to allow CFRA leave, it would be paying Lonicki's benefits (pursuant to Government Code 12945.2(f)) while she spends her time working for someone else. Apparently, Sutter wasn't too in to that, and terminated her employment.
The Resolution.
The majority holds that an employer can contest in litgation a doctor's determination that an employee has a serious health condition even if it does not ask for a final and binding third opinion from a neutral doctor. This is because the statute states that an employer "may" get a third opinion, not "must" get a third opinion. More importantly, Lonicki will probably be read as holding that the employer does not even have to get a second opinion in order to contest the employee's doctor's determination. The majority cites a federal case in support of its reasoning, which states:
"The FMLA provides only that an employer 'may' seek a second, or third, opinion if it questions the validity of an employee's proffered medical certification. Because the term 'may' is permissive . . . an employer who questions the validity of a certification has the option of seeking a second or third opinion without being required to do so."
The majority also holds that if an employee cannot perform her specific job due to a serious health condition, then CFRA leave is appropriate, even if she could perform a comparable job someplace else. Of course, if the employee is performing the same job someplace else, that certain goes to the question of whether she really has a serious health condition, but this is a question of fact. An employee has a "serious health condition" under CFRA if she cannot perform the "essential functions" of her specific job at her specific employer, as opposed to the essential functions of the job in general. Finally, the majority concludes that, if this is a stupid law, people should blame the legistature. They're just doing their job.
The Main Dissent. The primary dissent (by Justice Chin) argues that the majority is stupidly interpreting the law with respect to allowing the employee to perform an identical job for one employer while taking CFRA leave from the other. He reasons:
The CFRA does not contemplate that an employee with an alleged 'serious health condition' would remain employed and receive health insurance benefits under a group health plan from one employer while on medical leave, at the same time that the employee is apparently working in a comparable position for a different employer. The lead opinion's belief that the CFRA did not intend to refer to the general functions of the job is simply unpersuasive in light of the legislative intent and common understanding of that term.
Justice Chin's dissent is not the law, of course. It's just for the record.
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