The California Supreme Court’s recent decision in a California Family Rights Act (“CFRA”) case, Lonicki v. Sutter Health Central, will be useful to yours truly and other litigation defense attorneys…but may have limited practical effect for employers outside the courtroom.
|
|
|
|
|
 |
EMPLOYEE LEAVES
OF ABSENCE UPDATE:
CAL SUPREME COURT MAKES
THIRD MEDICAL OPINION OPTIONAL
BUT SHOULD EMPLOYERS TAKE THE SHORTCUT?
By Christopher W. Olmsted
The California Supreme Court’s recent decision in a California Family Rights Act (“CFRA”) case, Lonicki v. Sutter Health Central, will be useful to yours truly and other litigation defense attorneys…but may have limited practical effect for employers outside the courtroom.
The CFRA, like its twin, the federal FMLA, applies to employers of 50 or more employees. It gives qualified employees the right to take a protected medical leave of absence when, because of a serious health condition, the employee cannot perform the assigned job’s duties.
When an employee comes asking for a leave of absence, how does the employer know whether the leave must be granted under CFRA? That is, how does the employer determine whether the leave is needed is because the employee cannot perform her job duties due to a serious health condition?
It is certainly an important determination to make, as an employee protected by CFRA typically may take up to 12 weeks of leave, generally may not be terminated, is generally entitled to reinstatement, and may maintain health and other benefits during the leave, among other rights. Errors on any of these counts
lead to lawsuits.
The statute provides a procedure for the coverage determination, but in practice, compliance is cumbersome. An employer may request medical certification from the employee’s health care provider. (There are free forms available for this step.)
What if the employer has reason to doubt the employee’s certification? Sometimes busy doctors, often unfamiliar with CFRA, cavalierly sign the certification. Where there is reason for doubt, upon receipt of medical certification from the employee’s health care provider, the employer may, at its own expense, require the employee to visit a doctor selected by the employer.
What if the employer’s doctor disagrees with the employee’s doctor? That is, what if the employee’s doctor certifies that the employee has a serious medical condition that prevents the employee from performing her essential job duties, but the employer’s doctor determines that the employee is perfectly capable of working?
The statute calls for a tie-breaking third opinion. If there is a difference of opinion between the two health care providers, “the employer may require, at the employer’s expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee . . . .” The opinion of the third provider is “binding on the employer and the employee.”
The California Supreme Court’s decision in Lonicki featured this tie-breaking third medical opinion.
Antonia Lonicki worked as a technician in the Sutter Health Central’s hospital sterile processing department. She became mentally stressed after a major increase in workload. When her supervisor changed her shift start time from 8:30 a.m. to noon, she went home in tears. Soon she visited her doctor, who wrote a note for a one-month leave of absence “for medical reasons.”
The hospital sent Ms. Lonicki to its own doctor. The hospital’s doctor determined that she was capable of returning to work. The supervisor instructed Ms. Lonicki to return to work. She refused. The hospital granted her “paid time off” for a few days, but not medical leave. When Ms. Lonicki did not return on the scheduled day, the hospital terminated her.
Ms. Lonicki sued, alleging a violation of her medical leave rights under CFRA. In its defense, the hospital argued that Ms. Lonicki did not have a serious medical condition, and therefore did not qualify for protected leave.
Ms. Lonicki argued that the hospital was barred from arguing that she did not have a serious medical condition. She argued that the hospital, faced with a conflict between her doctor and the hospital’s doctor, failed to follow the CFRA procedure of obtaining a tie-breaking third opinion. That failure, she said, shut down any defense arguments that she did not have the required medical condition.
Thus, the California Supreme Court was faced with the following question: Does an employer’s failure to invoke the CFRA’s dispute-resolution mechanism of having a health care provider jointly chosen by the parties determine the employee’s entitlement to medical leave bar the employer from later claiming that the employee did not suffer from a serious health condition and was capable of performing her job?
Answer: No. But there is a catch.
The Court looked to the legislative language of CFRA. It found nothing in the statute required the employer to obtain a third opinion. Further, nothing in the statute bars the employer, once a lawsuit is filed, from defending itself on the ground that the employee did not suffer from a “serious health condition.”
The court looked to the FMLA for comparison. It cited a federal Fourth, Sixth and Eighth federal circuit court cases that found that the third medical opinion was optional and did not bar an employer’s defense in litigation. (Note: no precedent from our own Ninth Circuit yet.)
“Under both the CFRA and its federal counterpart, the FMLA, an employee is entitled to medical leave when, because of a serious health condition, the employee cannot perform the assigned job’s duties. If an employer doubts the validity of such a claim, nothing in either law precludes the employer from denying the employee’s request for medical leave and discharging the employee if the employee does not come to work.”
Good news for employers, right? The Court appears to suggest that the whole triple medical exam progression is optional. Or at the very least, the employer can skip the third exam. But wait, there is a catch.
What is the catch? After noting that medical exams are optional, the Court added: “Of course, an employer embarking on that course risks a lawsuit by the employee and perhaps a finding by the [jury] 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 [medical certification] mechanism provided for by both laws.”
In other words, the court delivered good news and bad news. The good news is that if an employer does not seek the third medical opinion, and the employee sues, the defense attorney remains free to argue in court that the employee never had a serious medical condition. The bad news? Court. Not a good place to be for an employer, even in the company of a defense attorney making good arguments.
The only way to close the litigation door is to seek the third medical opinion. Of course, that third opinion is binding. If that third medical provider opines that the eligible employee has a serious medical condition and is unable to work, the employer must grant the leave.
Practical Tips
Develop a plan. Under what circumstances will you require the employee to provide a medical provider’s certification? Remember that certification not only verifies the “serious medical condition,” and the inability to perform job duties, but also the start and end dates of the leave.
Prepare to act quickly. Develop a CFRA/FMLA procedure, including the employer’s response/notice form and the medical certification form. Employers have only two business days to make the request.
Job Description. Attach a job description to the certification form, to help the doctor determine whether the medical condition prevents the employee from performing her essential job functions.
Respect privacy. The California certification process is designed to restrict access to medical information. The medical providers are privy to the specifics, but you are not.
Find your doctors. Prepare a list of doctors available ahead of time to serve as your second opinion providers.
Exercise Carefully. The third opinion is optional under California law, but skipping it can lead to costly litigation. Seek legal advice before making such a decision.
Watch federal law. Our federal Ninth Circuit hasn’t weighed in on the issue of third medical opinions. An adverse decision will leave California employers who follow Lonicki vulnerable to FMLA lawsuits.
More Legal Update articles.
Download entire May Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
|
