Lonicki v. Sutter Health Central

S130839. Apr. [No. 2008.] LONICKI, v. Plaintiff Appellant,

ANTONINA CENTRAL, Defendant Respondent. SUTTER HEALTH Counsel Firm, Jr.; and David M. deRubertis The deRubertis Law

Martin F. Jennings, David A. Lesser for Plaintiff Appellant. Kristen, Shiu, R. Grodin for Sharon Terman and Joseph A. Elizabeth

Patricia Association, Caucus, California Lawyers’ California Asian Law Employment Fund, Inc., Center, Law Education and Defense Disability Rights Women’s The Aid Law Center Legal Advocates and Equal Rights Society-Employment as Amici Curiae on behalf of Plaintiff and Appellant. Yeates, and Charity &

Riegels Kenyon, Kenyon Jeffrey Owensby Campos for Defendant and Kenyon Respondent. Watkins,

Latham & E. R. Lewis for Joel Krischer Kristin Employers behalf and California Law Council as Amici Curiae on Group Employment Defendant and Respondent.

Opinion KENNARD, J. (Gov. the Moore-Brown-Roberti Act Family Rights Under Code,1 12945.1, 12945.2; CERA) hereafter a full-time is entitled §§ ato medical leave of absence for a health condition” that makes the “serious “unable to the functions of the of that position employee.” case, (c)(3)(C).) In this claiming major and work-related stress to work and depression coming stopped requested view, leave. In the did not have a serious employer’s health condition and was her duties. The capable performing work, ordered the to return to fired her when she did not. sued. We address two issues:

First, does an failure to invoke the CFRA’s employer’s dispute-resolution mechanism of a health care having chosen provider jointly by parties determine the entitlement to medical leave bar the later that the claiming did not suffer from a serious health condition and was her Our answer is “no.” capable performing job?

Second, if a full-time in which medical during employee, period for another was continued to sought, similar on a basis, does that conclusively establish part-time to do ability that, We conclude original although employer? part-time job evidence to do similar work for the from whom ability original employer Here, conclusive. has that evidence is not sought because the have evidence as to whether parties contrary presented had a serious condition that made her unable to do her full-time there is a issue of fact that must be at trial. job, resolved disputed

1 stated, statutory Unless otherwise all further are citations Government Code. 206

I the trial court a motion granted “Because this case comes before us after the record that was before the we take the facts from summary judgment, ‘ review the trial trial court when it ruled on that motion. “We [Citation.] novo, de all the evidence set forth in the considering moving court’s decision that to which were made and sus- objections and opposing papers except ’ tained.” We construe the evidence in liberally party support [Citation.] the evidence in and resolve doubts summary judgment concerning opposing (Yanowitz USA, (2005) v. L’Oreal Inc. favor of party. [Citation.]” 1028, 436, 1123].) P.3d Cal.4th Cal.Rptr.3d [32 1989, (defendant) hired Antonina Lonicki In Sutter Health Central plaintiff 1993, in Roseville. In in the its housekeeping hospital work department certified technician in the sterile hospital’s process- became a plaintiff and her attendance was Her work was ing good department. performance excellent. center. That change, became a level II trauma

In June hospital and more led to a increase in her workload major according plaintiff, no In unit asked for more avail. help, stress. The workers in plaintiff’s In that it would off three lay people. November 1998 the announced hospital were They December the director resigned. plaintiff’s supervisor Jatala, Actions Pat Curtis Pat Curtis and Steve respectively. replaced She consulted a doctor. increased stress. plaintiff’s shift, 26, 1999, a.m. at work for her 8:00 On when arrived July new would be from noon 8:30 p.m. Curtis told her that her shift supervisor in tears. Plaintiff went home denied for a vacation. Curtis plaintiff’s request Curtis said she After to her union she talking telephoned representative, afternoon, left a on message work. That Curtis plaintiff’s was too upset director Jatala’s request machine Steve conveying telephone answering for her absence. she medical authorization get Harris, Dr. but was told Roy

Plaintiff called primary physician, the next day her an he was on vacation. His office gave appointment Lobacarro, who gave Plaintiff Joe Lobacarro. saw nurse family practitioner, “[mjedical He also reasons.” leave of absence for her a note for a one-month her the note to brought that day, her to a Later plaintiff referred therapist. absence, a one-month leave of filled out a form requesting she also employer; Curtis. which she gave supervisor Cohen, 2, 1999, Dr. Michael to see director Jatala told plaintiff

On August did Plaintiff chosen defendant by employer. an occupational physician 4, minutes, so on 1999. After for two or three August talking plaintiff Dr. Cohen that concluded was able to return to work without plaintiff restrictions, which he stated in a brief written for defendant. report prepared 6, On her August director Jatala told to return to telephoned plaintiff work on 9 or face dismissal. Plaintiff talked to a union August representative, who that she follow the medical advice her suggested by given primary Harris, Dr. Harris. When Dr. he physician, she discussed matter with Roy 11, referred her to Janice Pettis. Plaintiff Psychologist August saw Pettis on 31, and thereafter saw her until weekly August 1999. 17, 1999,

On director Jatala and asked when August telephoned plaintiff she would come back to work. Plaintiff that on the advice of her replied doctors, she would return no sooner than 27. Thereafter August Jatala sent letter to that he had plaintiff stating discussed matter with union plaintiff’s Mike and that Jatala would allow time representative, Egan, plaintiff paid off—not medical leave—but that had to return to work August plaintiff 24, or face dismissal.2 On received the letter. August plaintiff 26, On August consulted Dr. Frank He plaintiff Capobianco, psychiatrist. wrote her a note that stating she was “disabled by major her depression,” related,” leave,” were “work symptoms she “sick and that her required medical leave should be extended to The next September day, 1999. delivered the plaintiff note to director Jatala. He told her to the human go to resources which told her that she been department, had for failure discharged for work on 23 and appear August August 1999.

After obtaining right-to-sue letter from the of Fair Department sued Employment Housing, defendant plaintiff violating CERA her and by firing to follow CERA when failing procedures of her questioning validity sick leave. Defendant moved for summary here, As judgment. defendant pertinent was not entitled argued plaintiff because, to medical leave under the CERA in the for which she period sought leave, she had a (Kaiser) at a different where part-time job hospital her tasks were substantially similar to those she hired was to perform Kaiser, defendant’s in Roseville. This hospital job with defendant part-time asserted, showed that did not have a “serious health condition” that plaintiff defendant, made her “unable to perform functions” of full-time Thus, as under the CERA. required (c)(3)(C).) according defendant, did not for CERA and hence her qualify discharge by defendant did not violate the CERA. 2 Director appears Egan acting Jatala to have believed representative that union was

plaintiff s representative, agreement and that the described in the was a settlement of the letter Plaintiff, however, dispute Egan agreed plaintiffs had to on behalf. denies that she ever Egan authorized negotiate on her behalf. left Plaintiff that whether she had a serious health that condition responded her unable to do her at defendant’s in Roseville was a hospital disputed of issue of fact. also asserted that because defendant’s failure to submit She care a decision that a health chosen dispute provider jointly by parties, 12945.2, (see (k)), would defendant was binding that have been subd. for statutory that did criteria arguing satisfy estopped medical leave. trial It with argument. agreed

The court rejected plaintiff’s estoppel at Kaiser her leave of absence during defendant plaintiff’s part-time job that she could the essential from defendant’s “showed employment perform for of The court defendant’s motion granted functions her defendant. job” of dis- judgment Plaintiff from the summary judgment. ensuing appealed missal, later We granted which the Court affirmed. plaintiff’s Appeal for review. petition

II or more The CFRA applies companies employees; to 12 weeks of unpaid “family allows up more if the has worked for the than company year, leave” 12945.2, 1,250 (§ during year. has at least hours of service the previous as or (a).) for the are needs such the birth family subd. Grounds here, member, or, child, as relevant family serious illness of adoption health condition . . . makes the serious own when “an . . . .” perform position unable functions of “ 12945.2, added.) The defines a (§ (c)(3)(C), italics CFRA subd. ‘[s]erious ” illness, mental “an or or injury, impairment, physical health condition’ (A) care in a either following: Inpatient condition involves [][] (B) Continuing care facility, or residential health hospice, hospital, [f] 12945.2, (§ or a health care by provider.” treatment continuing supervision (c)(8).) subd. submit certification

The may require includes which “shall be sufficient if it health care provider, the employee’s all of the commenced. following: ^[1] (B) The probable [f] (A) date on which the serious duration of the condition, health condition [f] (C) A condition, that, unable to to the serious health statement due (k)(l).) the function his or position.” [sic] of’ the to doubt validity An who “has reason the em- at the “may require, employer’s expense, health certification designated health care provider, obtain the a second ployee . .” certified . . information concerning any employer, approved

209 12945.2, If there is between the (§ (k)(3)(A).) opinion subd. difference of two, “the at the employer require, employer’s expense, obtain the of a third health care opinion provider, designated approved 12945.2, jointly (§ and the . .” (k)(3)(C), . . subd. employer added.) italics The of the third on the opinion provider “binding employer 12945.2, (§ and the (k)(3)(D).) subd. employee.” leave, medical During must continue to 12945.2, (§ (f)), with health benefits provide and upon return to work the must be the same given seniority as before the leave. subd. (g).)

The CFRA is modeled after federal legislation, and Medical Family 2601-2654; Leave Act (29 U.S.C. FMLA.) 1993. hereafter §§ language CFRA at issue here is provisions identical to the virtually of their language in the FMLA. counterparts

Ill Plaintiff contends that defendant’s failure to use the CFRA’s dispute- II, ante, resolution discussed in procedure defendant from part estops assert- ing when did plaintiff sought she not suffer from a serious health condition that made her unable to do her at defendant job employer’s Roseville hospital.

Here, CFRA, as under permitted defendant did require second health care defendant; to see a plaintiff chosen provider, unlike provider, own plaintiff’s health care concluded that provider, plaintiff did not have a serious health condition and was able to defendant. But defendant never availed itself of the CFRA provision allows an faced with two conflicting to refer the opinions matter to a third health care whose is final and provider, on binding so, both contends, Defendant’s failure parties. to do bars it from challenging claim of plaintiff’s having serious health condition that made her unable to do her defendant’s Roseville hospital.

To determine the merits of we need to examine plaintiff’s argument, the statutory language. “Our task is to discern the intent. The Legislature’s indicator, itself is the statutory language most reliable so we start with the words, statute’s them assigning their usual and ordinary meanings, them construing in context. If the words themselves are not we ambiguous, said, presume Legislature meant what it and the statute’s meaning plain hand, On governs. the other if the allows more than language one reasonable construction, we may look to such aids legislative history measure and maxims of construction. In cases of uncertain statutory meaning, also consider the of a includ we may consequences particular interpretation, (Wells One2One Foundation Learning v. its on ing impact public policy.” 225]; Cal.4th see also (2006) 39 P.3d Cal.Rptr.3d [48 Palmer v. GTE Inc. California, (2003) 30 Cal.4th 1271 Cal.Rptr.2d [135 P.3d 1067].) does not Here, the statutory employer language require pertinent care binding with two health obtain a faced conflicting provider opinions not a it does that an decision from third health care and provider, say barred, with who such a will be in litigation fails to obtain decision employer that the did not a serious the from suffer from claiming employee employee, unable to work. What the statutory health condition the making of denotes intent to offer the a choice is a language legislative employer from a third health care binding decision obtaining obtaining health care if there a difference between plaintiff’s is opinion provider, (k)(3)(C) and the Subdivision by one the designated employer. provider that an remedy. section 12945.2 states resort employer simply and (See ‘Shall’ is mandatory ‘may’ permissive.”].) [“ and concludes otherwise. concurring dissenting Justice Moreno’s 12945.2, which, (k)(l) relies on of section as previously He subdivision {ante, 208), that a certification the by mentioned at p. provides “shall be all of following: health care if it includes the provider [f] sufficient commenced, (B) The date on serious (A) The which the health condition [f] condition, that, A due to the serious (C) duration of the statement probable [f] condition, the of his health the is unable to function [sz'c] words, (Italics added.) the italicized three By using or her position.” concludes, intended Legislature and concurring dissenting opinion only way a certifica- challenge validity provide employer’s First, insist tion is must employer two-step process: second, if this be examined health care employer’s provider; warranted, leave is not health care concludes provider a third must choose jointly provider the dispute. to resolve meaning which the the three words on aside for a moment

Putting the location relies, words—in those concurring dissenting opinion (k)(l) This subdivision noteworthy. of section 12945.2—is subdivision rather, provider; has to do with third health care CFRA nothing certification showing to insist on a right employer’s discusses It would necessitates medical leave. suffers from a condition that odd, least, to have placed language requiring say This to use health care in such a third provider provision. employers true particularly because of far-reaching consequences concurring and dissenting of those words: opinion’s interpretation would be Employers cases, barred, in all completely entitlement litigating who uses the third health care (An is, leave. under provider scheme, the statutory barred from expressly health care challenging determination, provider’s which is (k)(3)(C)); binding construction, under Justice Moreno’s (k)(l) subdivision of section 12945.2 does not use the third bars an who equally health care provider.) Had the Legislature intended to take such dramatic it would step, surely have that intent in a expressed subdivision to the third health care pertaining rather than a provider, subdivision dealing solely certifica- tions. And instead of the three sufficient,” ambiguous words “shall be surely the would have used clear and unambiguous similar to language that used in (k)(3)(D) subdivision of section where it said the decision of the third health care “shall be provider considered to be final and shall be on the binding . . . .” employer event, below,

In any explained (k)(l) subdivision of section 12945.2 does not require an to submit employer an disputes regarding employee’s entitlement to medical leave to a third health care provider.

By stating an certification employee’s “shall be sufficient” if it contains the commencement date that the employee’s condition began, the condition,” “probable duration of the and a statement that the condition renders the unable to employee do the job, (k)(l) subdivision of section 12945.2 limits the type that an can an employer require of information employee in a provide For an not example, employer may certification. an require employee medical seeking leave to detailed provide intimate and private information about a serious condition that psychiatric has made the work, unable employee to do the nor the the employer deny request leave for This failing such provide information. statutory provision also limits an in employer’s right, litigation out of arising an leave to claim that the request, acted employer reasonably because the information the provided by was inad- employee If an equate: fires an employer who has the given employer valid facially certification in of a support for medical leave request and the CERA, then sues for violation of the the not defend employer may the suit by the asserting when employee, requesting provided insufficient evidence that the fell within the of the provisions CERA. But (k)(l) subdivision of section 12945.2 does not limit the employ- er’s choice of legal remedies. It does not that when say an employer the questions of an validity employee’s medical that is request sup- certification, a valid ported by only recourse employer’s to submit And it does matter to a third health care for a determination. provider binding that when who denied medical leave sues not has been say CFRA, under for violation of the employee’s rights employer failure third health to have submitted employer’s dispute litigation from in estops denying provider employer from a health condition. suffered serious (4th 2001) in F.D.I.C. Cir. 257 F.3d

Our conclusion finds Rhoads v. support There, a federal decision. the court construed dispute- appellate FMLA, earlier, which, noted are identical resolution as we provisions that an those in the The court stated: “The FMLA provides only CFRA. second, third, validity seek a or if ‘may’ questions of her condition. medical certification proffered an employee’s [Citations.] the statute the term ‘may’ plain language Because permissive, has the of certification validity indicates that who questions to do so. being and third without seeking opinion, a second required option Moreover, does language suggest plain [FMLA] these be forever foreclosed must pursue procedures condition; from a serious health whether an suffered challenging FMLA nothing legislative history explicitly supports F.D.I.C., (Rhoads 385-386.) F.3d at Two v. supra, pp. interpretation.” v. (Novak the same conclusion. other federal circuit courts have reached 572, 579; v. (6th 2007) Cir. 503 F.3d Metrohealth Medical Center Stekloff 2000) F.3d (8th (Stekloff).) Cir. 218 860 Mercy Systems St. John’s Health and court trial court decisions an contrary appellate To the are three federal Louisiana, we the has cited and which decision from State of which plaintiff below. discuss (N.D.Cal. 1998) 2 F.Supp.2d v. Costa Transit Dist.

In Sims Alameda-Contra after driver against the took action bus (Sims), disciplinary employer weeks, was that the absence concluding failed to come work for two he driver, had a back asked who said he unexcused. The never employer and a from two corroborating and notes physicians furnished problem health care by employer’s to submit to examination chiropractor, another driver in wake of discharged After the employer provider. thereafter, under sued two months driver occurring unexcused absence CFRA, back was a serious FMLA that his claiming problem both the and the statutorily was therefore condition that his two-week absence and medical leave. authorized had trial Sims concluded that because employer

The federal court in CFRA, and was barred FMLA used the dispute-resolution procedures had health care when there are provider two conflicting not bar it opinions—does from in this asserting, that it litigation, was in justified firing because plaintiff she did not meet the statutory requirement a serious health having condition that made her unable to do her job.

IV earlier, As discussed the CFRA a entitles full-time to take employee medical leave of to 12 weeks' when up has a “serious health condition that makes the unable to the functions of the perform position Here, that employee.” (c)(3)(C).) it is undis- that, puted during time claims she had a plaintiff serious health condition her do her a the sterile that made unable to full-time as technician in job at defendant’s Roseville she had a department hospital, part-time processing at a identical duties different Kaiser. In her nearly hospital, deposi- job same,” tion, “[ajbout at but admitted that her duties Kaiser were plaintiff [the] because, it was “a lot slower” at Kaiser unlike defendant’s hospital, a Kaiser was not trauma did not “bad cases.” hospital get In motion for the trial court ruled summary judgment, defendant’s granting to Kaiser in a that was similar job to work for plaintiff’s ability part-time had at a time when claimed the one she at defendant’s she hospital, could not job of a medical condition she do her because serious defendant, her duties demonstrated that she was able conclusively court, Court of affirmed trial reason- at defendant’s hospital. Appeal if the that under CFRA an must employer grant only ing unable essential functions job “gener- is to perform rather than ally, employer.” specific that the relevant challenges holding,

Plaintiff the Court Appeal’s arguing her at health condition made her unable to do job is whether a serious inquiry “gener- not her do her essential functions hospital, ability defendant’s nor the Court concluded. is Neither the CFRA right. as She ally,” Appeal FMLA, modeled, has after which the CFRA was language supporting Court of Appeal’s holding. treatise on leading employment

Pertinent here is this statement from to work in the “A is unable showing litigation: demonstrate enough due a serious health condition current does for a second working The fact that an incapacity. in current his or her working not mean he she is not incapacitated al., Rutter Litigation (The et Guide: (Chin Cal. Practice Employment job.” earlier, 12:266, in 2006) (rev. 2006).) # Some six years 12-28 Group f made the a federal court same point. Stekloff, supra, F.3d appellate nurse. an argument worked as After The plaintiff psychiatric Stekloff work, her obtained a note from left and thereafter with her she supervisor, to work for two weeks. When that she return recommending physician sued, abandonment,” she violation claiming fired for “job entitled court ruled that was The federal trial FMLA. because, was discharge, the time of summary judgment court of The federal time a nurse for different employer. working part is unable It held: demonstration disagreed. appeals “[A] a is enough or her due to serious health condition in his current job work that is one only if that job that the is even incapacitated, show employee 861.) The at (Stekloff, supra, F.3d p. is unable to perform.” the employee court that “the into whether an is able to explained inquiry employee perform essential those job ability functions of her should focus on to perform 862.) functions in her We agree. current environment.” at (Id. FMLA, involved the here the CFRA that at issue. whereas it is is Stekloff

But, earlier, FMLA, as we observed the CFRA is after the and the modeled of the CFRA is to the language virtually issue here identical provision Therefore, of in its the FMLA.3 we see no language reason not counterpart of 218 F.3d here. apply statutory analysis Stekloff,supra, aWhen serious health condition an from employee doing prevents tasks of an this does not indicate that the assigned necessarily position, is doing similar for another employee incapable job way employer. By A illustration: in the room of a that emergency treats hospital commonly volume of high life-threatening far more injuries may be stressful than similar work in the room of a that sees such emergency few hospital relatively Also, the that injuries. circumstance one full time job is whereas other time Some part significant: or mental illnesses physical may prevent an from full-time not render employee having job, yet employee time. incapable working only part

The Court of about here concerns abuse of the Appeal expressed CFRA’s who, here, medical leave provisions by like assert stress- employees related claims: would like to as “[Ejveryone hold a stress free as possible. But stress inheres in most conflicts with jobs, personality [Citation.] coworkers, can an particularly arise. If is entitled supervisors, make legal demands on an his or because her boss creates merely stress, . . . would no ‘supervisors be able longer manage effectively, fear without of constant demands for transfer their increasingly hypersen- ” sitive employees.’

Those concerns raise issues of should be addressed to policy court, rather than this whose task is limited to the laws construing enacted Both the its Legislature. CFRA and federal counterpart, FMLA, condition, allow medical leave for a stress-related as long condition is so serious as prevent doing assigned Indeed, a federal job. the FMLA states regulation interpreting expressly 3 The CFRA states entitled to medical based on a “serious condition that perform makes the unable to functions position (c)(3)(C), added.) employee.” italics The CFRA’s federal counterpart, FMLA, says that is entitled to medical leave when the suffers from “serious health condition the employee that makes unable to functions of such employee.” (29 position (a)(1)(D), added.) slight U.S.C. italics difference wording—“that” insignificant. versus “such”—is illness . . . serious health resulting stress [a] “[m]ental (29 825.114(c) (2007).) . . .” The California Fair . C.F.R. § condition[] Commission, adminis- Housing agency responsible Employment CFRA, reference federal regulations has tering incorporated by CFRA, conflict the FMLA to the extent do not they interpreting Constitution, tit. (Cal. and other state laws. Code Regs., California §7297.10.) that those federal

Defendant here considers it one of significant defines an to (29 (2007)) inability C.F.R. 825.115 regulations § reference to the Americans assigned by essential functions of perform job (42 ADA.) et hereafter Act U.S.C. seq.; with Disabilities of 1990. § defendant, have a qualify- to “courts the ADA not found According applying shift where claim is limited to a specific ing disability, shift, At issue is not work a ability here plaintiff’s particular supervisor.” for a estab- conclusively but whether her work different part-time Also, is a distinct time for defendant. the ADA lished her work full ability scheme, either the do not resemble those in whose statutory provisions That distinction is expressly FMLA or its California the CFRA. counterpart, the FMLA: “ADA’s ‘dis- federal regulations interpreting recognized are different concepts, and FMLA’s ‘serious condition’ ability’ (29 825.702(b) (2007).) C.F.R. analyzed must be separately.” that section subdivision We therefore conclude under 12945.2’s suffering leave when from a (c)(3)(C), which entitles an to medical unable to perform “serious health condition” “makes (italics added), the italicized position employee” functions of his or her job employer, refers to the assigned phrase held, refer, to “an inability as the here perform does not Court Appeal than for a specific employer.” functions rather job generally, essential case, was seeking when she ability, this plaintiff’s during period In for a different to work time employer, part medical leave from defendant those claimed she was (Kaiser), virtually tasks identical she doing hospital defendant, evidence she was strong capable unable that evidence is defendant’s Roseville But hospital. her full-time doing and her treating psychologist. as it contradicted dispositive, made her Thus, health condition that did have serious whether plaintiff of fact to be issue disputed do her full-time for defendant is unable to erred in defendant’s the trial court granting at trial. resolved Consequently, to work part ground plaintiff’s ability motion on summary judgment conclusively at similar duties ability perform time Kaiser established her time at hospital.4 full defendant’s

Disposition reversed, is The Court of and the matter is judgment Appeal remanded to that court further consistent with this opinion. proceedings J., J.,

George, Werdegar, C. and concurred. CHIN, J., Family and The Moore-Brown-Roberti Concurring Dissenting. 12945.1, Code, 12945.2; (Gov. CFRA) Act a Rights gives full-time §§ for a employee to a leave of absence “serious health right that condition makes the unable to the functions of employee perform (Id., (c)(3)(C).) of that . . . .” I position agree lead that an failure to invoke the CFRA’s opinion employer’s dispute- a resolution mechanism of health care determine the having provider employ- leave ee’s entitlement to medical does not bar the from asserting that did suffer from a condition that her not health rendered of incapable job. performing however,

I do not lead with the that an agree who opinion, claims to suffer may from a serious condition for medical apply under CFRA while she essential functions successfully performing identical of for a similar on a basis. An job employer, part-time 4 According concurring Legislature dissenting Justice Chin’s and intended to opinion, seeking bar full-time the CFRA the employee leave under when perform job part-time continues to for another employer opinion similar on a basis. But that Instead, identify any not provision stating. opinion merely does CFRA so that asserts that the “ Legislature’s intent ‘is from the the “essential apparent incorporation of functions” standard ” Chin, J., (Conc. 218.) applicable post, p. discrimination & at opn. cases.’ dis. of But that, Chin, according Legislature’s “essential “ functions” standard to Justice makes intent ” FMLA; ‘apparent,’ anywhere appear counterpart, does not in the CFRA federal or its only regulation. in an nor appears administrative Because neither in the CFRA standard, Congress in expressly incorporated light the FMLA it sheds little on their intent. concurring dissenting claiming Justice Chin’s opinion and also asserts “successfully from a suffer serious health condition not medical leave while seek performing job the essential of an identical similar on a employer, part-time functions for a Chin, J., (Conc. 217.) post, & opn. p. plaintiff’s part-time job basis.” dis. of at But for Kaiser though were job jobs was identical to her at defendant’s Roseville even the two hospital, alleges) working longer similar: The latter hours more required (plaintiff stressful significance, any, disputed conditions. if those differences is issue of fact to at decided trial. The asserts that not intended to shift the balance also “the CFRA ‘was ” (Id. 218.) power unwilling to a But capable employee.’ but here denies rather, capable unwilling-, incapable willing, she was but she but a matter for claims she was the trier of fact to decide. able to successfully obviously who is identical quite performing The lead function. en- job’s statutory interpretation opinion’s to take of a was intended to assist advantage system courages employees times, in difficult the needs fellow ignores them employers who in the system. participate employees with the that the CFRA was intended balance

I Court agree Appeal with the As that court the demands of needs of employee. workplace observed, the CFRA “was not intended to shift balance power That from the of incorporation but is unwilling employee. apparent capable to discrimination cases. Under the ‘essential functions’ standard applicable standard, the an is able functions of this who to essential perform employee to medical leave of the assertion regardless his or her is not entitled position of a selective disability.” allows with or more and employees

The CFRA to applies companies up leave” “an to of and medical if unpaid “family 12 weeks the health . . . makes the unable to employee perform own serious condition Code, 12945.2, (Gov. that of the of position § functions employee.” a “serious health condi- (c)(3)(C).) Under the applicable regulations, subd. that defined as or mental condition involves continuing tion” is a physical 2, 7297.0, (Cal. Code tit. Regs., treatment a health care provider. § observed, the of Fair (o).) As the also Department subd. Court Appeal from an suffers a and has that who Housing provided Employment “unable is one who is either to health condition” under statute “serious functions of unable one or more of essential any work at all or to perform 2, 7297.0, (k).) (Cal. tit. subd. Regs., of that Code § position employee.” as that term it uses the term “essential functions” The regulation specifies Code, (Gov. Act Fair and Housing is defined under Employment California “ means the fundamental et which states: ‘Essential functions’ seq.), § 12900 holds or disability the individual duties of the employment position of the does not functions marginal ‘Essential functions’ include desires. Code, (f).) subd. (Gov. position.” § statute, the “essential that under the Court of observed

The Appeal the Government (f) of section 12926 of functions” formulation in subdivision statutory prohibits employment “was in the scheme Code adopted ([Gov. Code,] with disabilities. against § discrimination persons subd. (a).) ... ^[1] The obvious purpose ‘essential functions’ formula- an expansive from discriminating adopting tion is prevent noted, As the Court job.” Appeal aptly “[t]he definition of duties of of that employee,’ the functions of the position ‘unable perform words restriction, that an The standard [citation], words requires are expansion. inhibited; limited or it unable rather than merely to perform, (Cal. the inability relate to the essential functions of the Code requires job. 2, 7297.0, (k).)” subd. Regs., tit. As court the “essential emphasized, § standard only functions” “can have been adopted prevent employees broad, leave abusing right to medical some by asserting amorphous, Indeed, need or desire leave.” perhaps subjective “[h]ad leave, intended confer an have expansive could used right far more language goal.” conducive to such Court understood that the correctly CFRA’s Appeal requirement grant must of an whose serious request health condition makes “unable to the functions of the of that position refers to “essential employee,” job functions” generally. Code, (Gov. (c)(3)(C).) The CFRA does not contemplate with an “serious alleged health condition” would remain health receive employed insurance benefits under group plan from one while on medical same time that the ain apparently working different comparable position The lead belief that the did employer. opinion’s CFRA not intend refer to general functions simply unpersuasive light intent and legislative common understanding of that term.

Indeed, the legislative history shows the Legislature contem- implicitly that an who plated leave due to a serious employee requested health condition would not able to similar duties while on perform job medical leave. This in several in especially apparent documents found the legislative history the explain CFRA amendments to the application existing law. 1993, (Stats. 827, ch. 4466.) The CFRA p. employers’ permits “requests 2nd and 3rd the opinions regarding of the certification validity with respect the own employee’s serious health condition.” Counsel’s Assem. (Legis. Dig., 1993, (1993-1994 Bill No. 1460 Sess.) 5 Reg. 339.) Stats. Summary Dig., p. addition, In the CFRA “permit[s] as a condition employer, of an employ- ee’s return from leave taken because own serious health employee’s condition, to to obtain require employee certification from his or her health care that the provider is able resume work.” (Legis. Bill Dig., (1993-1994 Counsel’s Assem. No. Sess.) 1460 Reg. as amended in 19, 1993.) Sen. Aug.

The legislative history also did indicates CFRA not that an consider would take leave from one job order work at a job second while also taking benefits from the employer’s job. first For example, CFRA “require[s] employer, during any period eligible employee takes family and medical or takes leave that as leave qualifies FMLA, under the to maintain and for the pay employee’s coverage under as group Counsel’s plan, specified.” (Legis. Assem. Bill Dig., 220 339; 1993, Sess.) (1993-1994 Dig., Stats. see Summary

No. 1460 5 Reg. p. on Assem. Bill of Fair & Enrolled Bill Housing, Rep. Dept, Employment 1993, 1.) The also (1993-1994 Sess.) No. CFRA Reg. Aug. 1460 p. to the own illness permits expands coverage Means, & (Assem. Com. on Ways use accrued sick leave for her illness. Rep. 3, 1993, Sess.) (1993-1994 on No. amended Reg. May Assem. Bill is on leave that the who 1.) Clearly, legislation p. contemplates work substantially to the extent that she cannot a second incapacitated identical job. claims one supports plaintiff’s position,

The lead relies on case opinion Health (See Mercy is not v. St. John’s but in fact case persuasive. Stekloff 858.) the “serious health (8th 2000) 218 F.3d In Systems discussing Cir. noted that whether condition” simply requirement, Stekloff was for another job could the functions of the same perform the federal Family to her for medical under material request FMLA), et an act that (29 Act of Medical Leave U.S.C. seq.; 861-862.) at focused (Stekloff,supra, CFRA. closely pp. parallels Stekloff and that on current current inquiry for another was could same whether 862.) (218 As the FMLA F.3d eligibility. immaterial the employee’s conclusion, observed, for its reasoning no provided Court of Appeal Stekloff the FMLA in the employee’s balance of and chose shift improperly statutory favor without support. law comment made in the employment lead also misuses a co-authored, v. which cited to and Hurlbert that I guide

practice Stekloff (11th 2006) Cir. 439 F.3d Care Inc. System, St. Health Mary’s al., 1295-1296, et (Chin holding. case that adopts another federal Stekloff 2006) (The Rutter Leaves Litigation Group Cal. Practice Guide: Employment Absence, 12:266, (rev. 2006).) # guide simply 12-28 practice of of interpreting application comparable Hurlbert as cases cites and Stekloff as to in a guide observation general practice the FMLA. A provisions in this case. authority is not in other jurisdictions persuasive state of law view that history legislative support CFRA and the The words of the advantage able to take an to be did intend Legislature As amici goals. employment in order further own medical leave policy Law Council recog- Employment and California Group curiae Employers the needs of balance between nize, to maintain statute’s in order the statute’s promote and to serve purpose and employers employees, is sense dictates common relationships, stable workplace and benefits continuing job and to leave under the CFRA not entitled to she is fully capable she demonstrates one while with preservation with the a performing same “essential functions” for second The Court of observed that the evidence employer. correctly is Appeal she undisputed, as testified in her “that did not have plaintiff deposition, with and could problem work she have returned to work for thought if it had suit her.” changed working Summary conditions to [defendant] on the judgment issue was therefore If the intends to proper. to take identical while permit employees jobs claiming second “serious health condition” so In expense employers, state. specifically can meantime, we should not that follow the law and employers penalize assist their who are in need leave. serious of medical employees

Baxter, J., J., and Corrigan, concurred. MORENO, J., Concurring IV Dissenting. I agreewith of the lead part The fact that opinion. held a at a different part-time job workplace similar duties while on medical performing is not conclusive evidence that she was able to the full-time had I perform which she taken leave. however, disagree, III of that I would hold that part opinion. under the Code, (CFRA) (Gov. Moore-Brown-Roberti Act Family Rights 12945.2),1 who fails to obtain a second or third as to an opinion employee’s condition bound opinion care provider, assuming contains the information required by statute. case,

To understand why this is the I first review the pertinent statutory scheme. As the lead the CFRA after opinion explains, the federal patterned Family (FMLA). 2601-2654.) Medical Leave Act (29 U.S.C. §§ circumstances, The CFRA allows under certain to 12 employee, weeks up unpaid medical leave” for “family needs such as the birth family child, member, or of a serious of a adoption illness or when “an family own serious health condition . . . makes the unable to functions of position employee.” CFRA (c)(3)(C).) The “serious defines health condition” as “an illness, or injury, or mental condition that impairment, physical involves either (A) of the following: care in a Inpatient hospital, hospice, [][] residential health care facility, (B) treatment or Continuing continuing [f] 12945.2, (§ (c)(8).) a health care supervision by subd. provider.” CFRA, leave, Under the if an an medical employee requests employer an require medical leave to employee seeking submit a certification the which “shall be employee’s health care if it provider, includes all of sufficient 1 statutory All references are to this code unless otherwise indicated.

222 (A)

the The date on which the serious condition following: [][] commenced, (B) (C) duration the condition. A The probable [][] [f] that, condition, is due the serious health unable statement 12945.2, (§ (k)(l), subd. the function of his or her position.” [sic] added.) italics State make clear that ask employers may regulations 7297.4, (Cal. Code tit. § additional information from employee. Regs., further “shall (b)(2)(A)(l).) employer subd. The regulations provide and in event no later any to the leave as soon as practicable respond request (Id., A, 1291 after receiving than ten calendar days request.” § (a)(6).) subd. certification

What when it that the “shall says employee’s the statute means of the statute. An sufficient” can be context entire fairly implied be is entitled to medical whose certification “sufficient” is below. defined circumstances discussed As statutorily under except Costa Transit Dist. court stated in Sims v.Alameda-Contra 1998) 2 (N.D.Cal. (Sims): “the certification procedures ... are the F.Supp.2d the medical facts underlying exclusive means for an employer challenge an permit certification. Although regulations explicitly the employee’s ‘a an who fails to produce requested leave to deny employer certification,’ 825.312(b), authority there is no medical C.F.R. explicit § who does medical leave to an deny produce employer if an medical To the stated that contrary, Congress certification. be sufficient.’ 29 U.S.C. meets certain ‘shall requirements, certification 2613(b).” last medical opinion does not make certified statute case in which seek “may” opinion any word. The a second “[i]n [it] 12945.2, (§ the certification” validity has reason to doubt third, two disagree if first (k)(3)(A)), binding opinion and a subd. (id., to the facts (D).) similarly These are limited (k)(3)(C), subd. opinions 12945.2, (C); (§ (k)(3)(A), certified subd. original covered in the opinion. Sims, supra, is 1262.) The third health provider F.Supp.2d see and the employee. jointly by designated approved Thus, sufficient (k)(3)(C).) the submission “upon certification, unless and entitled to ‘FMLA protection medical ” v. AT & T (Miller (S.D. W.Va. evidence.’ until there is contrary 574, 580.)2 1999) 60 F.Supp.2d 2 (k)(l) section in subdivision 12945.2 placement The lead contends that provided sufficient” if certain information the certification “shall be provision structure my disagree. I Viewed in terms overall position. somehow weakens statute, part this nothing in how the drafted surprising there is

purpose of the clearly what must do to obtain simply spells out statute. The statute employer has point At do to refuse medical leave. each leave and what the must sum,

In the statute and detail the circumstances accompanying regulations which, which, in and an procedures by may deny the an employer employee (1) such if the medical leave. The statute allows the leave deny employer in the fails to sufficient certification as set forth statute provide employee (2) a the has no if second and third medical conclude that opinion serious health condition that would him or from working. prevent (k)(3).) If an doubts an serious health employer employee’s condition, it cannot medical more employee’s compel provider provide Rather, em- information about condition. the statute mandates that the seek a how care second and third and the health ployer opinion prescribes third, is to be selected. provider rendering binding opinion The lead reads ambiguity fairly into a clear statute determines opinion set may ignore the forth in section employer simply procedures 12945.2 and a certified deny validly without a second obtaining conclusion, or third To arrive at this it opinion. relies a deal on use great “Here, of the word in the statute: “may” does pertinent statutory language not an require faced with health employer two care conflicting provider a obtain decision from third care and it opinions binding a provider, does say that who to obtain a will employer fails such decision barred, in with the litigation that the did employee, claiming not suffer from a serious health condition unable to making work. the statutory a language What denotes is intent to offer legislative a choice of or not a from a employer obtaining obtaining binding decision third health care if there provider, is a difference of between opinion plaintiff’s health and the provider one designated employer. (k)(3)(C) Subdivision of section 12945.2 may states that an simply employer to that (See resort remedy. “Shall” is is mandatory “may” [‘ ante, (Lead 210.) permissive.’].)” opn.,

The lead reliance on the the word opinion’s use of It “may” misplaced. would make little sense for the require government who has employer reason to doubt an a certification obtain second or third An who doubts the opinion. still wish to employer employee may give benefit doubt. Or the may satisfy its doubts employer favor means other than second medical obtaining Or the cost and trouble of opinion. obtaining second or third opinion a choice. When requests If can ask certification. unsatisfied, employee provides request sufficient certification and the it is still can and, favorable, opinion. second if Although third could have drafted differently, the statute sufficiently opinion’s explanation it is clear. The lead alternative language—that “shall be sufficient” simply is intended to limit the information the required to provide—makes Why little sense. take such care to limit the information necessary certify the need for simply ignore leave if the is then free to process deny certification the leave? the asking it for the when is example, not be worth for employer, the use that decision “may” merely little time off. The of means very the But employer. about whether to seek a second and third is to opinion up of not to not tell decision employer’s does us “may” consequences in are forth a second or third Those set elsewhere consequences seek opinion. to be sufficient” certification “shall statute—namely, a bona leave if it contains the information from authorize medical required third and if a second and challenged by fide health care it is provider (k)(l).) as discussed above. opinion, Moreover, is at least as as what is left unsaid in the statute pertinent what court If were intended to function as this majority is said. the statute does, it out is process one would how expect spell supposed says But if the not to a second or third binding opinion. work elects seek employer states, “Notwithstanding or that sufficient provision the statutory regulatory certification, a second third opinion, and the lack of favorable or doubt that the leave if it has reason to deny good employer may After is its absence. has a serious health condition” conspicuous do to obtain certification of into about what an must detail going it, do to one would and what an can contest serious health condition at least mentioned that or the would have Legislature think Congress and the second/third the certification essentially ignore could is no mention and refuse the medical leave That request. remedies opinion but to the fact legislation be attributed not faulty made of this must option it. and the never intended Congress that Legislature the dispute-resolution or make Why Congress would is that the procedure The lead opinion responds primarily procedure optional? a safe harbor to ensure employer’s for the benefit employer, ante, 211.) (See But lead immunity litigation. opn., from subsequent statute. in or history finds no either language supposition support is, FMLA, other among things, and the CFRA presumably The purpose . who have serious . . rectify “inadequate job protection employees (Presidential from working.” them health conditions temporarily prevent Statement, 145.) In other Presidential Documents Feb. Signing words, make having was intended to free employees statute Unlike other care of their health. taking their jobs choice between keeping transfers, decisions, about such decisions promotion, employment internal through grievance which can be contested of discipline, imposition whether to grant the decision about litigation, or subsequent procedures time extremely is generally due to serious health condition leave em- allow regulations statutory accompanying sensitive. The procedure if and to assure employees the decision made quickly, have ployees valid, to take medical claims are will able they their medical them lawfully give mind must that the knowing peace Otherwise, them, their if jobs. go back the second third opinions against will know have no to the they they right leave. legal Ensuring with a decision the leave based on the on expeditiously provided neutral health care rather than of which provider employer, considerations, be biased economic accord with completely hand, remedial the statute. other majority’s of On the the purpose interpreta- tion—that the the of essentially and procedure optional purpose giving immunize to their employers leave denial opportunity litigation— does not stated of the CERA FMLA. promote any or the purpose

Thus, the furthers statute’s dispute-resolution procedure purpose—job security for those who take bona fide medical leave—while allowing employ- to bogus ers ferret out medical The contrary leave requests. position—that after the done has asked of her to the seriousness everything certify condition, her medical can still her leave refuse without an consulting medical and litigation job independent opinion—encourages middle insecurity, and hole of in the of a that uncertainty leaves statute inform and designed seems to employers clearly their employees rights and obligations. employee with serious medical condition who terminated for medical leave would taking then have to in a engage costly back, to suit her in the of which have get course she would to litigate seriousness of her medical at the time condition she took the some- Sims, times supra, (See after that condition had 2 long ceased. F.Supp.2d 1261.) Or she would to her for the p. have sacrifice sake of security. There is no reason to believe Congress Legislature or the intended Rather, either of these results. all indications are Congress that Legislature regarded of whether an had a serious question health condition be warranting three months’ leave to up unpaid question, to be settled doctors at time the leave is primarily requested, not or later. by judges juries years course,

Of an have all sorts of doubt the may validity reasons anof medical certification—the have a may history or have credibility, may been seen activities that indicate his poor performing tasks, or ability or have been rumored employment have told another that the certification was fraudulent. But directly CFRA to these situations. The speaks mechanism dispute-resolution is not to be invoked but case in which the routinely, any specifically “[i]n employer has reason doubt validity certification.” [employee’s] added.) The (k)(3)(A), italics statute expressly contemplates reasons, an may, nonmedical entertain doubts about certification, but makes be clear those doubts must ultimately confirmed through second third medical opinions. to be an assump-

Behind the lead statute reading appears opinion’s be settled that a about medical leave legislative disputes tion requirement rather through than procedure, an alternative only through dispute-resolution ante, (lead 211) is “such a dramatic litigation, step” opn., That that it to bar such litigation. must state means explicitly were in form content to correct if the CFRA similar be assumption might authorized, barring was or if clearly other statutes in which such litigation CFRA, be contrary would evident litigation purpose subsequent (Cf. contrary public if such a bar were to some well-established policy. P.2d (1998) Baird 18 Cal.4th Cal.Rptr.2d Reno v. [76 CFRA is statute that uses 1333].) But none of these is true. The a unique to resolve about whether disputes of health providers opinions Moreover, discussed, “dra- medical leave. given should from circumventing prescribed proce- matic step” barring employers relatively with the of CFRA—to make it dures is consistent wholly purpose to obtain medical for with bona fide serious health conditions easy employees leave, time to contest while at the same allowing employers questionable use Nor mandate to claims the time are made. is a they legislative medical determin- make process an alternative procedure dispute-resolution costly less eligibility employees medical leave ing simpler Thus, I find lead any opinion’s alike contrary public policy. employers about limiting unfounded that the resolution disputes unspoken assumption office rather than doctor’s eligibility medical employee’s to do so Legislature must require courtroom is so anomalous that we than, here, clear implication. rather explicitly recounts, case, lead defendant as the opinion Turning present to test a second medical sought Sutter Health Central opinion employer certification, third did not but seek Antonina Lonicki’s medical plaintiff hold that the estopped I would therefore binding employer opinion. condition. had a serious health litigation in that contesting subsequent Law and the California Employment Amici curiae Employers Group Sims, its progeny would distinguish supra, F.Supp.2d Council case, Sims, the had in “contemporane- in the unlike because present ous, medi- employee’s invalidated affirmatively irrefutable evidence” job in same was fact performing cal certification—that leave. But whether or he or sought when she another evidence” exception require- irrefutable there is “contemporaneous, certification sufficient either accept ment clear makes IV the lead opinion a second and third opinion, part obtain That rightly case. does not in present opinion that the exception apply different setting in a part-time employment concludes plaintiff’s not irrefutable evidence that she was disabled from medically full performing time her with defendant. the CFRA is who

Although reasonably clear requiring employers doubt an certification obtain a favorable second and third medical before it is not clear denying obviously I would enough. to further its intention in this urge clarify regard. notes the driver challenging accuracy physician from submitted to his to work employer upon returning from his two-week courts, doctors, absence. The court reasoned: “To allow rather than determine the medical condition of an who seeks leave would employee upset the balance between eligible right swift expeditious and the coverage ensure that the employer’s right leave requested needed. The swift and policy providing would expeditious coverage undermined if an could employer leave to an who has simply deny presented certification of his need adequate for and entitlement to medical leave. An in that situation would have no recourse other than to the leave to forego which he bemay under the ... or to take entitled [FMLA] , suffer the . employer’s . . sue his discipline and then wait employer, for the court to decide. Time is of the essence when an employee requests (Sims, Sims, medical leave.” 1261.) supra, on two F.Supp.2d Relying other federal trial and a courts Louisiana court have reached similar appellate Services, (Wheeler conclusions. (D.Mass. v. Pioneer Developmental 2004) Inc. 158, 167; 349 F.Supp.2d v. Fort James Washington (D.Or. Co. Operating 1325, 1333-1334; Rubicon, 2000) 110 F.Supp.2d Williams v. Inc. (La.Ct.App. 1999) 754 So.2d 1085-1086.) We are not persuaded. FMLA, Under both the CFRA and its federal counterpart, an employee when, is entitled to condition, medical leave because of a serious health cannot If perform assigned job’s duties. doubts the claim, validity of such a nothing either law precludes the denying for medical request discharging if the course, does not come to work. Of an employer on that embarking course risks a lawsuit by perhaps the trier of finding by fact that the conduct employer’s violated the employ- ee’s FMLA, under rights both, either the CFRA or the by denying risks, requested leave. To avoid such can resort to the dispute-resolution mechanism both provided laws. To summarize: Defendant failure to employer’s use the CFRA’s dispute-resolution procedure—obtaining determination binding third

Case Details

Case Name: Lonicki v. Sutter Health Central

Court Name: California Supreme Court

Date Published: Apr 7, 2008

Citation: 74 Cal. Rptr. 3d 570

Docket Number: S130839

Court Abbreviation: Cal.