California law, like the Federal law, protects the rights of an employee with a “serious health condition” that makes the employee “unable to perform the functions” of his or her job. The California Family Rights Act, or CFRA (Gov. Code sections 12945.1, 12945.2) allows eligible employees twelve weeks of unpaid leave and continuance of health benefits.
Like the Federal act, the CFRA provides that an employer who disputes a physician’s finding of an employee’s right to leave can, at its own expense, seek a second opinion from a physician of its choosing. If that does not resolve the dispute, the employer may arrange for a third examination, also at its expense, by a physician agreed to by both employer and employee. The determination of the third physician is binding on employee and employer.
In Lonicki v. Sutter Health Central (2008) ___Cal.4th___ (S130839), the California Supreme Court made two significant rulings:
- While the employer can get the second and third opinion, it doesn’t have to do so. If the employer believes the employee is not entitled to leave, it can simply deny the leave request, and discipline or terminate the employee for not coming to work. Of course, the employee can then sue the employer for damages for violating CFRA, and if the employer is wrong, it will lose the suit.
- If the employee gets another job that is anything other than identical to the job from which the employee is taking leave, this may be strong evidence that the employee is actually able to perform the functions of his or her previous job. But it isn’t conclusive, and the employee may still be entitled to a jury trial as to whether he or she was entitled to leave. And under this decision, it sounds like almost no two jobs will ever be identical.
