Working Another Job While Taking “Leave,” Quirky Question # 40

Quirky Question # 40:

We have an employee who is claiming she has a serious health condition as a result of work-related stress and has given us a note from a nurse practitioner saying she should be off work for a month.  We don’t believe she has a serious medical condition, in part because we’ve heard that she is working part-time in a similar job.  She has refused to return to work.  Can we simply terminate her employment?

[Quirky Question # 40 is another one of our California Questions. As such, I have requested one of my California colleagues to provide the analysis. The analysis below was written by Karen Wentzel of our Palo Alto office. As I’ve described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen’s biography can be found at www.dorsey.com. Her email address is: wentzel.karen@dorsey.com. If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.]

Karen’s Analysis:

This scenario arises out of a recent California Supreme Court decision, Lonicki v. Sutter Health Central, 124 Cal. App.4th 1139 (2008). 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 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.

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 trial 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.

In a 4-3 ruling, the California Supreme Court reversed, holding 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 bottom line: 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. Terminating the employee without more information may lead to costly and time-consuming disputes involving factual questions that may ultimately have be decided by a jury.

Dorsey & Whitney

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