Although the ability to work a second job is a relevant factor, it does not preclude an employee from qualifying for CFRA leave.
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LEAVES OF ABSENCE
UPDATE, PART 2
Ability to Work Second Job
Does Not Preclude Leave Rights
By Christopher W. Olmsted
In Lonicki v. Sutter Health Central, the California Supreme Court examined a second question regarding CFRA leaves of absence. (For the first question, click here.) Can an employer deny leave to an employee who is perfectly capable of working a second job?
At the same time Ms. Lonicki requested a leave of absence from her full time position with Sutter Health, she had a second part-time job with Kaiser, another hospital. She had the same job duties at Kaiser as she did at Sutter. But, she said, Kaiser was “a lot slower” and did not take trauma cases, which had caused her anxiety at Sutter.
Although she claimed that she was unable to perform her job at Sutter due to the medical condition, she never took a leave from Kaiser. “Aha” said Sutter to Ms. Lonicki, “you are not unable to perform your job functions. If you can perform your job at Kaiser, you must be able to perform them here at Sutter.” Thus, according to Sutter, Ms. Lonicki did not qualify for CFRA medical leave, and hence her discharge did not violate the CFRA.
Armed with this argument in court, Sutter filed a motion for summary judgment, asking the court to end the case. The trial court agreed with Sutter and granted the motion. But on appeal, the California Supreme Court decided that the trial court erred.
The Supreme Court noted that “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.” The court gave examples. “By way of illustration: A job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. Also, the circumstance that one job is full time whereas the other is part time may be significant: Some physical or mental illnesses may prevent an employee from having a full-time job, yet not render the employee incapable of working only part time.”
So the trial court erred by deciding that a second job rules out leave eligibility. “We conclude that, although that part-time job is evidence of ability to do similar work for the original employer from whom the employee has sought medical leave, that evidence is not conclusive. Here, because the parties have presented contrary evidence as to whether the employee had a serious health condition that made her unable to do her full-time job, there is a disputed issue of fact that must be resolved at trial.”
In other words, the second job might, or might not prove that Ms. Lonicki could work at Sutter; it might or might not show that she was qualified to take a protected leave. The proper focus is whether or not the employee is able to work for the employer from whom she seeks leave. In this case it was an issue for the jury to sort out during trial. And of course, it is disappointing to employers any time the answer is “let the jury decide.”
Practical Tips:
In determining whether the employee has a medical condition that prevents her from performing her job, the employer should primarily focus on the employee’s ability to do the job for the employer, rather than on work generally or work for other employers.
While the ability to work similar jobs may be a relevant factor, avoid leave policies that strictly deny leave because the employee is able to work a second job.
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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.
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