Stanford Law School - Robert Crown Law Library

Filed 4/7/08

IN THE SUPREME COURT OF CALIFORNIA

ANTONINA LONICKI,
Plaintiff and Appellant,
S130839
v.
Ct.App. 3 C039617
SUTTER HEALTH CENTRAL,
) Sacramento
County
Defendant and Respondent.
Super. Ct. No. 00AS02199

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

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

1

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First, 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? Our answer is “no.”
Second, if a full-time employee, during the period in which medical leave
was sought, continued to perform a similar job for another employer on a part-
time basis, does that conclusively establish the ability to do the job for the original
employer? 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.
I
“Because this case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was before the trial
court when it ruled on that motion. [Citation.] ‘ “We review the trial court’s
decision de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.” ’
[Citation.] We liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that
party. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
In 1989, Sutter Health Central (defendant) hired plaintiff Antonina Lonicki
to work in the housekeeping department at its hospital in Roseville. In 1993,
plaintiff became a certified technician in the hospital’s sterile processing
department. Her work performance was good and her attendance was excellent.
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In June 1997, the hospital became a level II trauma center. That change,
according to plaintiff, led to a major increase in her workload and more stress.
The workers in plaintiff’s unit asked for more help, to no avail. In November
1998 the hospital announced that it would lay off three people. In December
1998, plaintiff’s supervisor and the director resigned. They were replaced by Pat
Curtis and Steve Jatala, respectively. Actions by Pat Curtis increased plaintiff’s
stress. She consulted a doctor.
On July 26, 1999, when plaintiff arrived at work for her 8:00 a.m. shift,
supervisor Curtis told her that her new shift would be from noon to 8:30 p.m.
Curtis denied plaintiff’s request for a vacation. Plaintiff went home in tears. After
talking to her union representative, she telephoned Curtis and said she was too
upset to work. That afternoon, Curtis left a message on plaintiff’s telephone
answering machine conveying director Steve Jatala’s request that she get medical
authorization for her absence.
Plaintiff called her primary care physician, Dr. Roy Harris, but was told
that he was on vacation. His office gave her an appointment the next day with a
family nurse practitioner, Joe Lobacarro. Plaintiff saw Lobacarro, who gave her a
note for a one-month leave of absence for “[m]edical reasons.” He also referred
her to a therapist. Later that day, plaintiff brought the note to her employer; she
also filled out a form requesting a one-month leave of absence, which she gave to
supervisor Curtis.
On August 2, 1999, director Jatala told plaintiff to see Dr. Michael Cohen,
an occupational health physician chosen by defendant employer. Plaintiff did so
on August 4, 1999. After talking to plaintiff for two or three minutes, Dr. Cohen
concluded that plaintiff was able to return to work without restrictions, which he
stated in a brief written report prepared for defendant. On August 6, director
Jatala telephoned plaintiff and told her to return to work on August 9 or face
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dismissal. Plaintiff talked to a union representative, who suggested that she follow
the medical advice given by her primary physician, Dr. Roy Harris. When she
discussed the matter with Dr. Harris, he referred her to Psychologist Janice Pettis.
Plaintiff saw Pettis on August 11, and thereafter saw her weekly until August 31,
1999.
On August 17, 1999, director Jatala telephoned plaintiff and asked when
she would come back to work. Plaintiff replied that on the advice of her doctors,
she would return no sooner than August 27. Thereafter Jatala sent a letter to
plaintiff stating that he had discussed the matter with plaintiff’s union
representative, Mike Egan, and that Jatala would allow plaintiff paid time off —
not medical leave — but that plaintiff had to return to work by August 23 or face
dismissal.2 On August 24, plaintiff received the letter.
On August 26, plaintiff consulted Dr. Frank Capobianco, a psychiatrist. He
wrote her a note stating that she was “disabled by major depression,” that her
symptoms were “work related,” that she required “sick leave,” and that her
medical leave should be extended to September 26, 1999. The next day, plaintiff
delivered the note to director Jatala. He told her to go to the human resources
department, which told her that she had been discharged for failure to appear for
work on August 23 and August 24, 1999.
After obtaining a right-to-sue letter from the Department of Fair
Employment and Housing, plaintiff sued defendant employer for violating the
CFRA by firing her and by failing to follow CFRA procedures when questioning

2
Director Jatala appears to have believed that union representative Egan was
acting as plaintiff’s representative, and that the agreement described in the letter
was a settlement of the dispute that Egan had agreed to on plaintiff’s behalf.
Plaintiff, however, denies that she ever authorized Egan to negotiate on her behalf.
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the validity of her sick leave. Defendant moved for summary judgment. As
pertinent here, defendant argued that plaintiff was not entitled to medical leave
under the CFRA because, in the period for which she sought medical leave, she
had a part-time job at a different hospital (Kaiser) where her tasks were
substantially similar to those she was hired to perform at defendant’s hospital in
Roseville. This part-time job with Kaiser, defendant asserted, showed that
plaintiff did not have a “serious health condition” that made her “unable to
perform the functions” of her full-time job for defendant, as required under the
CFRA. (§ 12945.2, subd. (c)(3)(C).) Thus, according to defendant, plaintiff did
not qualify for CFRA medical leave, and hence her discharge by defendant did not
violate the CFRA.
Plaintiff responded that whether she had a serious health condition that left
her unable to do her job at defendant’s hospital in Roseville was a disputed issue
of fact. She also asserted that because of defendant’s failure to submit that dispute
to a health care provider jointly chosen by the parties, a decision that would have
been binding (see § 12945.2, subd. (k)), defendant was estopped from arguing that
plaintiff did not satisfy the statutory criteria for medical leave.
The trial court rejected plaintiff’s estoppel argument. It agreed with
defendant that plaintiff’s part-time job at Kaiser during her leave of absence from
defendant’s employment “showed that she could perform the essential functions of
her job” for defendant. The court granted defendant’s motion for summary
judgment. Plaintiff appealed from the ensuing judgment of dismissal, which the
Court of Appeal later affirmed. We granted plaintiff’s petition for review.
II
The CFRA applies to companies with 50 or more employees; it allows an
employee up to 12 weeks of unpaid “family care and medical leave” if the
employee has worked for the company for more than a year, and has at least 1,250
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hours of service during the previous year. (§ 12945.2, subd. (a).) Grounds for the
leave are family needs such as the birth or adoption of a child, serious illness of a
family member, or, as relevant here, when “an employee’s own serious health
condition . . . makes the employee unable to perform the functions of the position
of that employee.” (§ 12945.2, subd. (c)(3)(C), italics added.) The CFRA defines
a “[s]erious health condition” as “an illness, injury, impairment, or physical or
mental condition that involves either of the following: [¶] (A) Inpatient care in a
hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment
or continuing supervision by a health care provider.” (§ 12945.2, subd. (c)(8).)
The employer may require the employee to submit a certification by the
employee’s health care provider, which “shall be sufficient if it includes all of the
following: [¶] (A) The date on which the serious health condition commenced.
[¶] (B) The probable duration of the condition. [¶] (C) A statement that, due to
the serious health condition, the employee is unable to perform the function [sic]
of his or her position.” (§ 12945.2, subd. (k)(1).)
An employer who “has reason to doubt the validity of” the employee’s
health certification “may require, at the employer’s expense, that the employee
obtain the opinion of a second health care provider, designated or approved by the
employer, concerning any information certified . . . .” (§ 12945.2, subd.
(k)(3)(A).) If there is a difference of opinion between the two, “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 . . . .” (§ 12945.2, subd. (k)(3)(C), italics added.) The opinion of the
third provider is “binding on the employer and the employee.” (§ 12945.2, subd.
(k)(3)(D).)
During the employee’s medical leave, the employer must continue to
provide the employee with health benefits (§ 12945.2, subd. (f)), and upon return
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to work the employee must be given the same seniority as before the leave.
(§ 12945.2, subd. (g).)
The CFRA is modeled after federal legislation, the Family and Medical
Leave Act of 1993. (29 U.S.C. §§ 2601-2654; hereafter the FMLA.) The
language of the CFRA provisions at issue here is virtually identical to the
language of their counterparts in the FMLA.
III
Plaintiff contends that defendant’s failure to use the CFRA’s dispute-
resolution procedure discussed in part II, ante, estops defendant from asserting
that when plaintiff sought medical leave, she did not suffer from a serious health
condition that made her unable to do her job at defendant employer’s Roseville
hospital.
Here, as permitted under the CFRA, defendant employer did require
plaintiff to see a second health care provider, chosen by defendant; that provider,
unlike plaintiff’s own health care provider, concluded that plaintiff did not have a
serious health condition and was able to perform her job for defendant. But
defendant never availed itself of the CFRA provision that allows an employer
faced with two conflicting medical opinions to refer the matter to a third health
care provider, whose opinion is final and binding on both parties. Defendant’s
failure to do so, plaintiff contends, bars it from challenging plaintiff’s claim of
having a serious health condition that made her unable to do her job at defendant’s
Roseville hospital.
To determine the merits of plaintiff’s argument, we need to examine the
statutory language. “Our task is to discern the Legislature’s intent. The statutory
language itself is the most reliable indicator, so we start with the statute’s words,
assigning them their usual and ordinary meanings, and construing them in context.
If the words themselves are not ambiguous, we presume the Legislature meant
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what it said, and the statute’s plain meaning governs. On the other hand, if the
language allows more than one reasonable construction, we may look to such aids
as the legislative history of the measure and maxims of statutory construction. In
cases of uncertain meaning, we may also consider the consequences of a particular
interpretation, including its impact on public policy.” (Wells v. One2One
Learning Foundation (2006) 39 Cal.4th 1164, 1190; see also Palmer v. GTE
California, Inc. (2003) 30 Cal.4th 1265, 1271.)
Here, the pertinent statutory language does not require an employer faced
with two conflicting health care provider opinions to obtain a binding decision
from a third health care provider, and it does not say that an employer who fails to
obtain such a decision will be barred, in litigation with the employee, from
claiming that the employee did not suffer from a serious health condition making
the employee unable to work. What the statutory language denotes is a legislative
intent to offer the employer a choice of obtaining or not obtaining a binding
decision from a third health care provider, if there is a difference of opinion
between plaintiff’s health care provider and the one designated by the employer.
Subdivision (k)(3)(C) of section 12945.2 simply states that an employer may
resort to that remedy. (See § 14 [“ ‘Shall’ is mandatory and ‘may’ is
permissive.”].)
Justice Moreno’s concurring and dissenting opinion concludes otherwise.
He relies on subdivision (k)(1) of section 12945.2, which, as previously mentioned
(ante, at p. 6), provides that a certification by the employee’s health care provider
“shall be sufficient if it includes all of the following: [¶] (A) The date on which
the serious health condition commenced. [¶] (B) The probable duration of the
condition. [¶] (C) A statement that, due to the serious health condition, the
employee is unable to perform the function [sic] of his or her position.” (Italics
added.) By using the italicized three words, the concurring and dissenting opinion
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concludes, the Legislature intended to provide that an employer’s only way to
challenge the validity of a certification is by a two-step process: First, the
employer must insist that the employee be examined by the employer’s health care
provider; second, if this health care provider concludes that medical leave is not
warranted, the employer and the employee must jointly choose a third health care
provider to resolve the dispute.
Putting aside for a moment the meaning of the three words on which the
concurring and dissenting opinion relies, the location of those words — in
subdivision (k)(1) of section 12945.2 — is noteworthy. This subdivision of the
CFRA has nothing to do with the third health care provider; rather, it discusses the
employer’s right to insist on a certification showing that the employee suffers from
a condition that necessitates medical leave. It would be odd, to say the least, for
the Legislature to have placed language requiring employers to use a third health
care provider in such a provision. This is particularly true because of the far-
reaching consequences of the concurring and dissenting opinion’s interpretation of
those words: Employers would be completely barred, in all cases, from litigating
an employee’s entitlement to medical leave. (An employer who uses the third
health care provider is, under the statutory scheme, expressly barred from
challenging the health care provider’s determination, which is binding (§ 12945,
subd. (k)(3)(C)); and under Justice Moreno’s construction, subdivision (k)(1) of
section 12945 equally bars an employer who does not use the third health care
provider.)
Had the Legislature intended to take such a dramatic step, surely it would
have expressed that intent in a subdivision pertaining to the third health care
provider, rather than a subdivision dealing solely with employee certifications.
And instead of the three ambiguous words “shall be sufficient,” surely the
Legislature would have used clear and unambiguous language similar to that used
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in subdivision (k)(2)(D) of section 12945, where it said the decision of the third
health care provider “shall be considered to be final and shall be binding on the
employer . . . .”
In any event, as explained below, subdivision (k)(1) of section 12945 does
not require an employer to submit disputes regarding an employee’s entitlement to
medical leave to a third health care provider.
By stating that an employee’s certification “shall be sufficient” if it contains
the commencement date of the employee’s health condition began, the “probable
duration of the condition,” and a statement that the condition renders the employee
unable to do the job, subdivision (k)(1) of section 12945 limits the type of
information that an employer can require an employee to provide in a
certification. For example, an employer may not require an employee seeking
medical leave to provide detailed intimate and private information about a serious
psychiatric condition that has made the employee unable to do the work, nor may
the employer deny the employee’s request for medical leave for failing to provide
such information. This statutory provision also limits an employer’s right, in
litigation arising out of an employee’s medical leave request, to claim that the
employer acted reasonably because the information provided by the employee was
inadequate: If an employer fires an employee who has given the employer a
facially valid certification in support of a request for medical leave and the
employee then sues for violation of the CFRA, the employer may not defend the
suit by asserting that the employee, when requesting leave, provided insufficient
evidence that the employee fell within the provisions of the CFRA. But
subdivision (k)(1) of section 12945 does not limit the employer’s choice of legal
remedies. It does not say that when an employer questions the validity of an
employee’s medical leave request that is supported by a valid certification, the
employer’s only recourse is to submit the matter to a third health care provider for
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a binding determination. And it does not say that when an employee who has
been denied medical leave sues the employer for violation of the employee’s rights
under the CFRA, the employer’s failure to have the dispute submitted to a third
health care provider estops the employer from denying in the litigation that the
employee suffered from a serious health condition.
Our conclusion finds support in Rhoads v. F.D.I.C. (4th Cir. 2001) 257
F.3d 373, a federal appellate decision. There, the court construed the dispute-
resolution provisions of the FMLA, which, as we noted earlier, are identical to
those in the CFRA. The court stated: “The FMLA provides only that an employer
‘may’ seek a second opinion, or third, opinion if it questions the validity of an
employee’s proffered medical certification of her condition. [Citations.] Because
the term ‘may’ is permissive, the plain language of the statute indicates that an
employer who questions the validity of a certification has the option of seeking a
second and third opinion, without being required to do so. Moreover, the plain
language of the [FMLA] does not suggest that an employer must pursue these
procedures or be forever foreclosed from challenging whether an employee
suffered from a serious health condition; and nothing in the legislative history of
the FMLA explicitly supports that interpretation.” (Rhoads v. F.D.I.C., supra, 257
F.3d at pp. 385-386.) Two other federal circuit courts have reached the same
conclusion. (Novak v. Metrohealth Medical Health Center (6th Cir. 2007) 503
F.3d 572, 579; Stekloff v. St. John’s Mercy Health Sys. (8th Cir. 2000) 218 F.3d
858, 860 (Stekloff).)
To the contrary are three federal trial court decisions and an appellate court
decision from the State of Louisiana, which plaintiff has cited and which we
discuss below.
In Sims v. Alameda-Contra Costa Transit District (N.D.Cal. 1998) 2
F.Supp.2d 1253 (Sims), the employer took disciplinary action against a bus driver
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after he failed to come to work for two weeks, concluding that the absence was
unexcused. The employer never asked the driver, who said he had a back problem
and furnished corroborating notes from two physicians and a chiropractor, to
submit to an examination by the employer’s health care provider. After the
employer discharged the driver in the wake of another unexcused absence
occurring two months thereafter, the driver sued under both the FMLA and the
CFRA, claiming that his back problem was a serious health condition and that his
two-week absence was therefore statutorily authorized medical leave.
The federal trial court in Sims concluded that because the employer had not
used the dispute-resolution procedures of the FMLA and CFRA, it was barred
from challenging the accuracy of the physician notes that the driver had submitted
to his employer upon returning to work from his two-week absence. The court
reasoned: “To allow courts, rather than doctors, to determine the medical
condition of an employee who seeks leave would upset the balance between the
eligible employee’s right to swift and expeditious coverage and the employer’s
right to ensure that the requested leave is needed. The policy of providing swift
and expeditious coverage would be undermined if an employer could simply deny
leave to an employee who has presented adequate certification of his need for and
entitlement to medical leave. An employee in that situation would have no
recourse other than to forego the leave to which he may be entitled under the
[FMLA] . . . or to take leave, suffer the employer’s discipline . . . , sue his
employer, and then wait for the court to decide. Time is of the essence when an
employee requests medical leave.” (Sims, supra, 2 F.Supp.2d at p. 1261.)
Relying on Sims, two other federal trial courts and a Louisiana appellate court
have reached similar conclusions. (Wheeler v. Pioneer Developmental Services,
Inc. (D.Mass. 2004) 349 F.Supp.2d 158, 167; Washington v. Fort James
Operating Co. (D.Or. 2000) 110 F.Supp.2d 1325, 1333-1334; Williams v.
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Rubicon, Inc. (La.Ct.App. 1999) 754 So.2d 108, 1085-1086.) We are not
persuaded.
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. Of course, an employer embarking on that
course risks a lawsuit by the employee and perhaps a finding by the trier of fact
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 dispute-resolution mechanism provided for by
both laws.
To summarize: Defendant employer’s failure to use the CFRA’s dispute-
resolution procedure — obtaining a binding determination by a third health care
provider when there are two conflicting opinions — does not bar it from asserting,
in this litigation, that it was justified in firing plaintiff because she did not meet the
statutory requirement of having a serious health condition that made her unable to
do her job.
IV
As discussed earlier, the CFRA entitles a full-time employee to take
medical leave of up to 12 weeks when the employee has a “serious health
condition that makes the employee unable to perform the functions of the position
of that employee.” (§ 12945.2, subd. (c)(3)(C).) Here, it is undisputed that,
during the time plaintiff claims she had a serious health condition that made her
unable to do her full-time job as a technician in the sterile processing department
at defendant’s Roseville hospital, she had a part-time job with nearly identical
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duties at a different hospital, Kaiser. In her deposition, plaintiff admitted that her
duties at Kaiser were “[a]bout [the] same,” but that it was “a lot slower” at Kaiser
because, unlike defendant’s hospital, Kaiser was not a trauma hospital and did not
get “bad cases.”
In granting defendant’s motion for summary judgment, the trial court ruled
that plaintiff’s ability to work part-time for Kaiser in a job that was similar to the
one she had at defendant’s hospital, at a time when she claimed that because of a
serious medical condition she could not do her job for defendant, conclusively
demonstrated that she was able to perform her duties at defendant’s hospital. The
Court of Appeal affirmed the trial court, reasoning that under the CFRA an
employer must grant medical leave only if the employee is unable to perform the
employee’s essential job functions “generally, rather than for a specific employer.”
Plaintiff challenges the Court of Appeal’s holding, arguing that the relevant
inquiry is whether a serious health condition made her unable to do her job at
defendant’s hospital, not her ability to do her essential job functions “generally,”
as the Court of Appeal concluded. She is right. Neither the CFRA nor the FMLA,
after which the CFRA was modeled, has language supporting the Court of
Appeal’s holding.
Pertinent here is this statement from a leading treatise on employment
litigation: “A showing that an employee is unable to work in the employee’s
current job due to a serious health condition is enough to demonstrate incapacity.
The fact that an employee is working for a second employer does not mean he or
she is not incapacitated from working in his or her current job.” (Chin et al., Cal.
Practice Guide: Employment Litigation (The Rutter Group 2006) ¶ 12:266, p. 12-
28.) Some six years earlier, in Stekloff, supra, 218 F.3d 858, a federal appellate
court made the same point.
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The plaintiff in Stekloff worked as a psychiatric nurse. After an argument
with her supervisor, she left work, and thereafter obtained a note from her
physician recommending that she not return to work for two weeks. When the
employer fired her for “job abandonment,” she sued, claiming violation of the
FMLA. The federal trial court ruled that the employer was entitled to summary
judgment because, at the time of discharge, the plaintiff was working part time as
a nurse for a different employer. The federal court of appeals disagreed. It held:
“[A] demonstration that an employee is unable to work in his or her current job
due to a serious health condition is enough to show that the employee is
incapacitated, even if that job is the only one that the employee is unable to
perform.” (Stekloff, supra, 218 F.3d at p. 861.) The court explained that “the
inquiry into whether an employee is able to perform the essential functions of her
job should focus on her ability to perform those functions in her current
environment.” (Id. at p. 862.) We agree.
Stekloff involved the FMLA, whereas here it is the CFRA that is at issue.
But, as we observed earlier, the CFRA is modeled after the FMLA, and the
language of the CFRA provision at issue here is virtually identical to the language
of its counterpart in the FMLA.3 Therefore, we see no reason not to apply the
statutory analysis of Stekloff, supra, 218 F.3d 858, here.

3
The CFRA states that an employee is entitled to medical leave based on a
“serious health condition that makes the employee unable to perform the functions
of the position of that employee.” (§ 12945.2, subd. (c)(3)(C), italics added.) The
CFRA’s federal counterpart, the FMLA, says that an employee is entitled to
medical leave when the employee suffers from a “serious health condition that
makes the employee unable to perform the functions of the position of such
employee.” (29 U.S.C. § 2612 (a)(1)(D), italics added.) The slight difference in
wording — “that” versus “such” — is insignificant.
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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. 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.
The Court of Appeal here expressed concerns about abuse of the CFRA’s
medical leave provisions by employees who, like plaintiff here, assert stress-
related claims: “[E]veryone would like to hold a job as stress free as possible.
[Citation.] But stress inheres in most jobs, and personality conflicts with
coworkers, particularly supervisors, can arise. If an employee is entitled to make
legal demands on an employer merely because his or her boss creates stress, . . .
‘supervisors would no longer be able to manage effectively, without fear of
constant demands for transfer by their increasingly hypersensitive employees.’ ”
Those concerns raise issues of policy that should be addressed to the
Legislature rather than this court, whose task is limited to construing the laws
enacted by the Legislature. Both the CFRA and its federal counterpart, the
FMLA, allow medical leave for a stress-related condition, as long as the condition
is so serious as to prevent the employee from doing the assigned job. Indeed, a
federal regulation interpreting the FMLA expressly states that “[m]ental illness
resulting from stress . . . may be [a] serious health condition[].” (29 C.F.R.
§ 825.114(c) (2007).) The California Fair Employment and Housing Commission,
the agency responsible for administering the CFRA, has incorporated by reference
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the federal regulations interpreting the FMLA to the extent they do not conflict
with the CFRA, the California Constitution, and other state laws. (Cal. Code
Regs., tit. 2, § 7297.10.)
Defendant employer here considers it significant that one of those federal
regulations (29 C.F.R. § 825.115 (2007)) defines an employee’s inability to
perform essential functions of the assigned job by reference to the Americans with
Disabilities Act of 1990. (42 U.S.C. § 12101 et seq.; hereafter ADA.) According
to defendant, “courts applying the ADA have not found a qualifying disability,
where the employee’s claim is limited to a specific shift or supervisor.” At issue
here is not plaintiff’s ability to work a particular shift, but whether her part-time
work for a different employer conclusively established her ability to work full
time for defendant. Also, the ADA is a distinct statutory scheme, whose
provisions do not resemble those in either the FMLA or its California counterpart,
the CFRA. That distinction is expressly recognized in the federal regulations
interpreting the FMLA: “ADA’s ‘disability’ and FMLA’s ‘serious health
condition’ are different concepts, and must be analyzed separately.” (29 C.F.R.
§ 825.702(b) (2007).)
We therefore conclude that under section 12945.2’s subdivision (c)(3)(C),
which entitles an employee to medical leave when suffering from a “serious health
condition” that “makes the employee unable to perform the functions of the
position of that employee” (italics added), the italicized phrase refers to the job
assigned to the employee by his or her employer; it does not refer, as the Court of
Appeal here held, to “an inability to perform the essential job functions generally,
rather than for a specific employer.”
In this case, plaintiff’s ability, during the period when she was seeking
medical leave from defendant employer, to work part time for a different hospital
(Kaiser), doing tasks virtually identical to those she claimed she was unable to
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perform for defendant, is strong evidence that she was capable of doing her full-
time job at defendant’s Roseville hospital. But that evidence is not dispositive, as
18

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it is contradicted by plaintiff and her treating psychologist. Thus, whether plaintiff
did have a serious health condition that made her unable to do her full-time job for
defendant is a disputed issue of fact to be resolved at trial. Consequently, the trial
court erred in granting defendant’s summary judgment motion on the ground that
plaintiff’s ability to work part time at Kaiser conclusively established her ability to
perform similar duties full time at defendant’s hospital.4

4
According to Justice Chin’s concurring and dissenting opinion, the
Legislature intended to bar a full-time employee from seeking medical leave under
the CFRA when the employee continues to perform a similar job for another
employer on a part-time basis. But that opinion does not identify any CFRA
provision so stating. Instead, that opinion merely asserts that the Legislature’s
intent “ ‘is apparent from the incorporation of the “essential functions” standard
applicable to discrimination cases.’ ” (Conc. & dis. opn. of Chin, J., post, at p. 2.)
But the “ ‘ “essential functions” ’ ” standard that, according to Justice Chin, makes
the Legislature’s intent “ ‘apparent,’ ” does not appear anywhere in the CFRA or
its federal counterpart, the FMLA; it appears only in an administrative regulation.
Because neither the Legislature in the CFRA nor Congress in the FMLA expressly
incorporated that standard, it sheds little light on their intent.

Justice Chin’s concurring and dissenting opinion also asserts that an
employee claiming to suffer from a serious health condition may not seek medical
leave while “successfully performing the essential functions of an identical job for
a similar employer, on a part time basis.” (Conc. & dis. opn. of Chin, J., post, at
p. 1.) But plaintiff’s part-time job for Kaiser was not identical to her job at
defendant’s Roseville hospital, even though the two jobs were similar: The latter
job required longer hours and (plaintiff alleges) more stressful working conditions.
The significance, if any, of those differences is a disputed issue of fact to be
decided at trial. The opinion also asserts that “the CFRA ‘was not intended to
shift the balance of power to a capable but unwilling employee.’ ” (Id. at p. 2.)
But here plaintiff denies that she was capable but unwilling; rather, she claims she
was incapable but willing, a matter for the trier of fact to decide.

19

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DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with this opinion.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.

20

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CONCURRING AND DISSENTING OPINION BY CHIN, J.

The Moore-Brown-Roberti Family Rights Act (Gov. Code, §§ 12945.1,
12945.2 (CFRA)) gives a full-time employee the right to a medical leave of
absence for a “serious health condition that makes the employee unable to perform
the functions of the position of that employee . . . .” (Id., § 12945.2, subd.
(c)(3)(C).) I agree with the lead opinion that an employer’s failure to invoke the
CFRA’s dispute-resolution mechanism of having a health care provider determine
the employee’s entitlement to medical leave does not bar the employer from
asserting that the employee did not suffer from a health condition that rendered her
incapable of performing her job.
I do not agree with the lead opinion, however, that an employee who claims
to suffer from a serious health condition may apply for medical leave under the
CFRA while she is successfully performing the essential functions of an identical
job for a similar employer, on a part-time basis. An employee who is successfully
performing an identical job is obviously quite able to perform that job’s function.
The lead opinion’s statutory interpretation encourages employees to take
advantage of a system that was intended to assist them in difficult times, and
ignores the needs of employers and fellow employees who participate in the
system.
I agree with the Court of Appeal that the CFRA was intended to balance the
demands of the workplace with the needs of the employee. As that court
1

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observed, the CFRA “was not intended to shift the balance of power to a capable
but unwilling employee. That is apparent from the incorporation of the ‘essential
functions’ standard applicable to discrimination cases. Under this standard, an
employee who is able to perform the essential functions of his or her position is
not entitled to medical leave regardless of the assertion of a selective disability.”
The CFRA applies to companies with 50 or more employees and allows up
to 12 weeks of unpaid “family care and medical leave” if “an employee’s own
serious health condition . . . makes the employee unable to perform the functions
of the position of that employee.” (Gov. Code., § 12945.2, subd. (c)(3)(C).)
Under the applicable regulations, a “serious health condition” is defined as a
physical or mental condition that involves continuing treatment by a health care
provider. (Cal. Code Regs., tit. 2, § 7297.0, subd. (o).) As the Court of Appeal
also observed, the Department of Fair Employment and Housing has provided that
an employee who suffers from a “serious health condition” under the statute is one
who is either “unable to work at all or unable to perform any one or more of the
essential functions of the position of that employee.” (Cal. Code Regs., tit. 2, §
7297.0, subd. (k).) The regulation specifies that it uses the term “essential
functions” as that term is defined under the California Fair Employment and
Housing Act, which states: “ ‘Essential functions’ means the fundamental job
duties of the employment position the individual with a disability holds or desires.
‘Essential functions’ does not include the marginal functions of the position.”
(Gov. Code., § 12926, subd. (f).)
The Court of Appeal observed that under the statute, the “essential
functions” formulation in subdivision (f) of section 12926 “was adopted in the
statutory scheme that prohibits employment discrimination against persons with
disabilities. ([Gov. Code., ]§ 12940, subd. (a).) . . . [¶] The obvious purpose of
the ‘essential functions’ formulation is to prevent an employer from discriminating
2

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by adopting an expansive definition of the duties of the job.” As the Court of
Appeal aptly noted, “[t]he words ‘unable to perform the functions of the position
of that employee’ . . . are words of restriction, not expansion. The standard
requires that an employee be unable to perform, rather than merely limited or
inhibited; and it requires that the inability relate to the essential functions of the
job. (Cal. Code Regs., tit. 2, § 7297.0, subd. (k).)” As the court emphasized, the
“essential functions” standard “can only have been adopted to prevent employees
from abusing the right to medical leave by asserting some broad, amorphous, and
perhaps subjective need or desire for leave.” Indeed, “[h]ad the Legislature
intended to confer an expansive right to medical leave, it could have used
language far more conducive to such a goal.”
The Court of Appeal correctly understood that the CFRA’s requirement
that an employer must grant the leave request of an employee whose serious health
condition makes the employee “unable to perform the functions of the position of
that employee,” refers to the “essential job functions” generally. (Gov. Code., §
12945.2, subd. (c)(3)(C).) The CFRA does not contemplate that an employee with
an alleged “serious health condition” would remain employed and receive health
insurance benefits under a group health plan from one employer while on medical
leave, at the same time that the employee is apparently working in a comparable
position for an different employer. The lead opinion’s belief that the CFRA did
not intend to refer to the general functions of the job is simply unpersuasive in
light of the legislative intent and common understanding of that term.
Indeed, the legislative history shows that the Legislature implicitly
contemplated that an employee who requested leave due to a serious health
condition would not be able to perform similar job duties while on medical leave.
This is especially apparent in several documents found in the Legislative history
that explain the application of the CFRA amendments to the existing law. (Stats.
3

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1993, ch. 827, p. 4466.) The CFRA permits employers’ “requests for 2nd or 3rd
opinions regarding the validity of the certification with respect to the employee’s
own serious health condition.” (Legis. Counsel’s Dig., Assem. Bill No. 1460
(1993-1994 Reg. Sess.) 5 Stats. 1993, Summary Dig., p. 339.) In addition, the
CFRA “permit[s] an employer, as a condition of an employee’s return from leave
taken because of the employee’s own serious health condition, to require the
employee to obtain certification from his or her health care provider that the
employee is able to resume work.” (Ibid.; Legis. Counsel’s, Assem. Bill No. 1460
(1993-1994 Reg. Sess.) as amended in Sen. Aug. 19, 1993.)
The legislative history also indicates the CFRA did not consider that an
employee would take leave from one job in order to work at a second job while
also taking the employer’s benefits from the first job. For example, the CFRA
“requires an employer, during any period that an eligible employee takes family
care and medical leave, or takes leave that qualifies as leave under the FMLA, to
maintain and pay for the employee’s medical coverage under a group health plan,
as specified.” (Legis. Counsel’s Dig., Assem. Bill No. 1460 (1993-1994 Reg.
Sess.) 5 Stats. 1993, Summary Dig., p. 339; Dept. of Fair Employment and
Housing, enrolled bill rep. on Assem. Bill 1460 (1993-1994 Reg. Sess.) Aug. 26,
1993, p. 1.) The CFRA also expands coverage to the employee’s own illness and
permits the employee to use accrued sick leave for her illness. (Assem. Com. on
Ways and Means, Rep. on Assem. Bill 1460 (1993-1994 Reg. Sess.) as amended
May 3, 1993, p. 1.) Clearly, the legislation contemplates that the employee who is
on leave is incapacitated to the extent that she cannot work a second substantially
identical job.
The lead opinion relies on one case it claims supports plaintiff’s position, but
in fact the case is not persuasive. (Stekloff v. St. John’s Mercy Health Sys. (8th Cir.
2000) 218 F. 3d 858.) In discussing the “serious health condition” requirement,
4

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Stekloff simply noted that whether the employee could perform the functions of the
same job for another employer was not material to her request for medical leave
under the federal Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et. seq.
(FMLA)), an act that closely parallels the CFRA. (Stekloff, supra, at pp. 861-862.)
Stekloff focused the inquiry on the employee’s current job with the current
employer and that whether the employee could perform the same job for another
employer was immaterial to the employee’s FMLA eligibility. (Id. at p. 862.) As
the Court of Appeal observed, Stekloff provided no reasoning for its conclusion, and
chose to improperly shift the balance of the FMLA in the employee’s favor without
statutory support.
The lead opinion also misuses a comment made in the employment law
practice guide that I co-authored, which cited to Stekloff and Hurlbert v. St.
Mary’s Health Care System, Inc. (11th Cir. 2006) 439 F.3d 1286, 1295-1296,
another federal case that adopts the Stekloff holding. (Chin et. al., Cal. Practice
Guide: Employment Litigation (The Rutter Group 2006) Leaves of Absence, [¶]
12:266, p. 12-28.) The practice guide simply cites Stekloff and Hurlbert as
interpreting application of comparable provisions in the FMLA. A general
observation in a practice guide as to the state of the law in other jurisdictions is not
persuasive authority in this case.
The words of the CFRA and the legislative history support the view that the
Legislature did not intend an employee to be able to take advantage of the medical
leave policy in order to further her own employment goals. As amici curiae
Employers Group and the California Employment Law Council recognize, in
order to maintain the statute’s balance between the needs of employers and
employees, and to serve the statute’s purpose to promote stable workplace
relationships, common sense dictates that an employee is not entitled to leave
under the CFRA and to continuing benefits and job preservation with one
5

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employer while she demonstrates she is fully capable of performing a job with the
same “essential functions” for a second employer. The Court of Appeal correctly
observed that the evidence is undisputed, as plaintiff testified in her deposition,
“that she did not have a problem with work and thought she could have returned to
work for [defendant] if it had changed the working conditions to suit her.”
Summary judgment on the issue was therefore proper. If the Legislature intends
to permit employees to take identical second jobs while claiming a “serious health
condition” at the expense of employers, it can specifically so state. In the
meantime, we should not penalize employers that follow the law and assist their
employees who are in serious need of medical leave.

CHIN, J.

WE CONCUR:

BAXTER, J.
CORRIGAN, J.

6

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CONCURRING AND DISSENTING OPINION BY MORENO, J.

I agree with part IV of the lead opinion. The fact that plaintiff held a part-time
job at a different workplace performing similar duties while on medical leave is not
conclusive evidence that she was able to perform the full-time job for which she had
taken leave. I disagree, however, with part III of that opinion. I would hold that
1
under the Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, § 12945.2),
an employer who fails to obtain a second or third opinion as to an employee’s medical
condition is bound by the opinion of the employee’s health care provider, assuming
that opinion contains the information required by the statute.
To understand why this is the case, I first review the pertinent statutory
scheme. As the lead opinion explains, the CFRA is patterned after the federal
Family and Medical Leave Act of 1993 (FMLA). (29 U.S.C. §§ 2601-2654.) The
CFRA allows an employee, under certain circumstances, up to 12 weeks of unpaid
“family care and medical leave” for family needs such as 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.” (§ 12945.2, subd. (c)(3)(C).) The CFRA defines a
“ ‘[s]erious health condition’ ” as “an illness, injury, impairment, or physical or
mental condition that involves either of the following: [¶] (A) Inpatient care in a
hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment
or continuing supervision by a health care provider.” (§ 12945.2, subd. (c)(8).)

1
All statutory references are to this code unless otherwise indicated.
1

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Under the CFRA, if an employee requests medical leave, an employer may
require an employee seeking medical leave to submit a certification by the employee’s
health care provider, which “shall be sufficient if it includes all of the following: [¶]
(A) The date on which the serious health condition commenced. [¶] (B) The
probable duration of the condition. [¶] (C) A statement that, due to the serious
health condition, the employee is unable to perform the function [sic] of his or her
position.” (§ 12945.2, subd. (k)(1), italics added.) State regulations make clear that
employers may not ask for additional information from the employee. (Cal. Code
Regs., tit. 2, § 7297.4, subd. (b)(2)(A)(1).) The regulations further provide that an
employer “shall respond to the leave request as soon as practicable and in any event
no later than ten calendar days after receiving the request.” (Id., § 7297.4,
subd. (a)(6).)
What the statute means when it says that the employee’s certification “shall be
sufficient” can be fairly implied from the context of the entire statute. An employee
whose certification is “sufficient” is entitled to medical leave, except under the
statutorily defined circumstances discussed below. As the court stated in Sims v.
Alameda-Contra Costa Transit District (N.D.Cal. 1998) 2 F.Supp.2d 1253: “the
certification procedures . . . are the exclusive means for an employer to challenge the
medical facts underlying the employee’s certification. Although the regulations
explicitly permit an employer to deny leave to an employee who fails to produce ‘a
requested medical certification,’ 29 C.F.R. § 825.312(b), there is no explicit authority
for an employer to deny leave to an employee who does produce medical
certification. To the contrary, Congress stated that if an employee’s medical
certification meets certain requirements, it ‘shall be sufficient.’ 29 U.S.C. § 2613(b).”
The statute does not make the employee’s certified medical opinion the last
word. The employer “may” seek a second opinion “[i]n any case in which [it] has
reason to doubt the validity of the certification” (§ 12945.2, subd. (k)(3)(A)), and a
2

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third, binding opinion if the first two disagree (id., subd. (k)(3)(C), (D).) These
opinions are similarly limited to the facts covered in the original certified opinion.
(§ 12945.2, subd. (k)(3)(A) & (C); see Sims, supra, 2 F.Supp.2d at p. 1262.) The
third health care provider is to be designated or approved jointly by the employer and
the employee. (§ 12945.2, subd. (k)(3)(C).) Thus, “upon the submission of a
sufficient medical certification, an employee is entitled to ‘FMLA protection unless
and until there is contrary medical evidence.’ ” (Miller v. A T & T (S.D. W.Va. 1999)
60 F.Supp.2d 574, 580.)2
In sum, the statute and accompanying regulations detail the circumstances in
which and the procedures by which an employer may deny an employee medical
leave. The statute allows the employer to deny such leave (1) if the employee fails to
provide sufficient certification as set forth in the statute or (2) if a second and third
medical opinion conclude that the employee has no serious health condition that
would prevent him or her from working. (§ 12945.2, subd. (k)(3).) If an employer

2
The lead opinion contends that the placement in subdivision (k)(1) of
section 12945.2 of the provision that the certification “shall be sufficient” if
certain information is provided somehow weakens my position. I disagree.
Viewed in terms of the overall structure and purpose of the statute, there is nothing
surprising in how the Legislature drafted this part of the statute. The statute
simply spells out clearly what the employee must do to obtain medical leave and
what the employer must do to refuse medical leave. At each point the employer
has a choice. When the employee requests leave, the employer can ask for
certification. If the employee provides sufficient certification and the employer is
still unsatisfied, it can request a second opinion and, if favorable, a third opinion.
Although the Legislature could have drafted the statute differently, it is
sufficiently clear. The lead opinion’s alternative explanation of the “shall be
sufficient” language — that it is intended simply to limit the information the
employee is required to provide — makes little sense. Why take such care to limit
the information necessary to certify the need for medical leave if the employer is
then free to simply ignore the certification process and deny the leave?
3

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doubts an employee’s serious health condition, it cannot compel the employee’s
medical provider to provide more information about the condition. Rather, the statute
mandates that the employer seek a second and third opinion and prescribes how the
health care provider rendering the third, binding opinion is to be selected.
The lead opinion reads ambiguity into a fairly clear statute and determines that
an employer may simply ignore the procedures set forth in section 12945.2 and deny
a validly certified medical leave without obtaining a second or third opinion. To
arrive at this conclusion, it relies a great deal on the use of the word “may” in the
statute: “Here, the pertinent statutory language does not require an employer faced
with two conflicting health care provider opinions to obtain a binding decision from a
third health care provider, and it does not say that an employer who fails to obtain
such a decision will be barred, in litigation with the employee, from claiming that the
employee did not suffer from a serious health condition making the employee unable
to work. What the statutory language denotes is a legislative intent to offer the
employer a choice of obtaining or not obtaining a binding decision from a third health
care provider, if there is a difference of opinion between plaintiff’s health care
provider and the one designated by the employer. Subdivision (k)(3)(C) of
section 12945.2 simply states that an employer may resort to that remedy. (See § 14
[‘ “Shall” is mandatory and “may” is permissive.’].)” (Lead opn., ante, at p. 8.)
The lead opinion’s reliance on the use of the word “may” is misplaced. It
would make little sense for the government to require an employer who has reason to
doubt an employee’s certification to obtain a second or third opinion. An employer
who doubts the employee may still wish to give the employee the benefit of the doubt.
Or the employer may satisfy its doubts in the employee’s favor by means other than
obtaining a second medical opinion. Or the cost and trouble of obtaining a second or
third opinion may not be worth it for the employer, for example, when the employee
is asking for very little time off. The use of “may” merely means that the decision
4

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about whether to seek a second and third opinion is up to the employer. But “may”
does not tell us the consequences of an employer’s decision not to seek a second or
third opinion. Those consequences are set forth elsewhere in the statute — namely,
that an employee’s certification “shall be sufficient” to authorize medical leave if it
contains the required information from a bona fide health care provider and if it is not
challenged by a second and third opinion, as discussed above. (§ 12945.2,
subd. (k)(1).)
Moreover, what is left unsaid in the statute is at least as pertinent as what is
said. If the statute were intended to function as the majority of this court says it does,
one would expect it to spell out how the process is supposed to work if the employer
elects not to seek a second or binding third opinion. But the statutory or regulatory
provision that states, “Notwithstanding sufficient employee certification, and the lack
of a favorable second or third opinion, an employer may deny medical leave if it has
good reason to doubt that the employee has a serious health condition” is conspicuous
by its absence. After going into detail about what an employee must do to obtain
certification of a serious health condition and what an employer can do to contest it,
one would think Congress or the Legislature would have at least mentioned that the
employer could essentially ignore the certification and the second/third opinion
remedies and refuse the medical leave request. That no mention is made of this
option must be attributed not to faulty legislation but to the fact that Congress and the
Legislature never intended it.
Why would Congress or the Legislature make the dispute resolution procedure
optional? The lead opinion responds that the procedure is primarily for the benefit of
the employer, a safe harbor to ensure the employer’s immunity from subsequent
litigation. (See lead opn., ante, at p. 10.) But that supposition finds no support in
either the language or history of the statute. The purpose of the FMLA, and
presumably the CRFA is, among other things, to rectify the “inadequate job
5

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protection for . . . employees who have serious health conditions that temporarily
prevent them from working.” (Presidential Signing Statement, Feb. 5, 1993, 29
Presidential Documents 145.) In other words, the statute was intended to free
employees from having to make a choice between keeping their jobs or taking care of
their health. Unlike other employment decisions, such as decisions about promotion,
transfers, and the imposition of discipline, which can be contested through internal
grievance procedures or subsequent litigation, the decision about whether to grant
medical leave due to a serious health condition is generally extremely time sensitive.
The statutory procedure and accompanying regulations allow employees to have the
decision made quickly, and to assure employees that if their medical claims are valid,
they will be able to take medical leave with the peace of mind of knowing that the
employer must lawfully give them back their jobs. Otherwise, if the second and third
opinions go against them, they will know they have no legal right to the leave.
Ensuring that the employee is expeditiously provided with a decision on the leave
based on the opinion of a neutral health care provider rather than of the employer,
which may be biased by economic considerations, is completely in accord with the
remedial purpose of the statute. On the other hand, the majority’s interpretation —
that the procedure is optional and essentially for the purpose of giving employers the
opportunity to immunize their leave denial from litigation — does not promote any
stated purpose of the CFRA or the FMLA.
Thus, the dispute resolution procedure furthers the statute’s purpose — job
security for those who take bona fide medical leave — while allowing employers to
ferret out bogus medical leave requests. The contrary position — that after the
employee has done everything asked of her to certify the seriousness of her medical
condition, the employer can still refuse her leave without consulting an independent
medical opinion — encourages litigation and job insecurity, and leaves a hole of
uncertainty in the middle of a statute that seems designed to inform employers and
6

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employees clearly of their rights and obligations. The employee with a serious
medical condition who is terminated for taking medical leave would then have to
engage in a costly suit to get her job back, in the course of which she would have to
litigate the seriousness of her medical condition at the time she took the leave,
sometimes long after that condition had ceased. (See Sims, supra, 2 F.Supp.2d at
p. 1261.) Or she would have to sacrifice her health for the sake of job security. There
is no reason to believe Congress or the Legislature intended either of these results.
Rather, all indications are that Congress and the Legislature regarded the question of
whether an employee had a serious health condition warranting up to three months’
unpaid medical leave to be primarily a medical question, to be settled by doctors at
the time the leave is requested, not by judges or juries years later.
Of course, an employer may have all sorts of reasons to doubt the validity of
an employee’s medical certification — the employee may have a history of poor
credibility, or may have been seen performing activities that indicate his or her ability
to perform the employment tasks, or may have been rumored to have told another
employee that the certification was fraudulent. But the CFRA speaks directly to these
situations. The dispute resolution mechanism is not to be invoked routinely, but
specifically “[i]n any case in which the employer has reason to doubt the validity of
the [employee’s] certification.” (§ 12945.2, subd. (k)(3)(A).) The statute expressly
contemplates that an employer may, for nonmedical reasons, entertain doubts about
an employee’s certification, but makes clear that those doubts ultimately must be
confirmed through second and third medical opinions.
Behind the lead opinion’s reading of the statute appears to be an assumption
that a legislative requirement that disputes about medical leave be settled only
through an alternative dispute resolution procedure, rather than through litigation, is
“such a dramatic step” (lead opn., ante, p. 9) that the Legislature must explicitly state
that it means to bar such litigation. That assumption may have been correct if the
7

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CFRA were similar in form and content to other statutes in which such litigation was
clearly authorized, or if barring subsequent litigation would be contrary to the evident
purpose of the CFRA, or if such a bar were contrary to some well-established public
policy. (Cf. Reno v. Baird (1998) 18 Cal.4th 640, 653.) But none of these is true.
The CFRA is a unique statute that uses the opinions of health care providers to
resolve disputes about whether an employee should be given medical leave.
Moreover, as discussed, the “dramatic step” of barring employers from circumventing
the prescribed procedures is wholly consistent with the purpose of CFRA — to make
it relatively easy for employees with bona fide serious health conditions to obtain
medical leave, while at the same time allowing employers to contest questionable
medical claims at the time they are made. Nor is a legislative mandate to use an
alternative dispute resolution procedure to make the process of determining medical
leave eligibility simpler and less costly for employees and employers alike contrary to
any public policy. Thus, I find the lead opinion’s unspoken assumption unfounded
that limiting the resolution of disputes about an employee’s medical leave eligibility
to the doctor’s office rather than the court room is so anomalous that we must require
the Legislature to do so explicitly rather than, as here, by clear implication.
Turning to the present case, as the lead opinion recounts, defendant employer
Sutter Health Central sought a second medical opinion to test plaintiff Antonina
Lonicki’s medical certification, but did not seek a third binding opinion. I would
therefore hold that the employer is estopped from contesting in subsequent litigation
that plaintiff had a serious health condition.
Amici curiae Employers Group and the California Employment Law Council
would distinguish Sims, supra, 2 F.Supp.2d 1258, and its progeny because in the
present case, unlike Sims, the employer had “contemporaneous, irrefutable evidence”
that affirmatively invalidated the employee’s medical certification — that the
employee was in fact performing the same job for another employer when he or she
8

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sought medical leave. But whether or not there is a “contemporaneous, irrefutable
evidence” exception to the requirement that the employer either accept the
employee’s sufficient certification or obtain a second and third opinion, part IV of the
lead opinion makes clear that the exception does not apply in the present case. That
opinion rightly concludes that plaintiff’s part-time employment in a different job
setting is not irrefutable evidence that she was medically disabled from performing
full-time her job with defendant.
Although the CFRA is reasonably clear in requiring that employers who doubt
an employee’s certification obtain a favorable second and third medical opinion
before denying the employee medical leave, it is obviously not clear enough. I would
urge the Legislature to further clarify its intention in this regard.
MORENO, J.
9

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Lonicki v. Sutter Health Central
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 124 Cal.App.4th 1139
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S130839
Date Filed: April 7, 2008
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Joe S. Gray

__________________________________________________________________________________

Attorneys for Appellant:

Martin F. Jennings, Jr., The deRubertis Law Firm, David M. deRubertis and David A. Lesser for Plaintiff
and Appellant.

Patricia A. Shiu, Elizabeth Kristen, Sharon Terman and Joseph R. Grodin for Asian Law Caucus,
California Employment Lawyers’ Association, California Women’s Law Center, Disability Rights
Education and Defense Fund, Inc., Equal Rights Advocates and The Legal Aid Society - Employment Law
Center as Amici Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Riegels Campos & Kenyon, Kenyon Yeates, Jeffrey Owensby and Charity Kenyon for Defendant and
Respondent.

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

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Counsel who argued in Supreme Court (not intended for publication with opinion):

David M. deRubertis
The deRubertis Law Firm
21800 Oxnard Street, Suite 1180
Woodland Hills, CA 91367
(818) 227-8605

Joseph R. Grodin
UC Hastings College of the Law
200 Mcallister Street
San Francisco, CA 94102
(415) 565-4600

Charity Kenyon
Kenyon Yeates
3400 Cottage Way, Suite K
Sacramento, CA 95825
(916) 609-5000

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Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issues: (1) Under the provisions of the Moore-Brown-Roberti Family Rights Act (Gov. Code, section 12945.2) that grant an employee the right to a leave of absence when the employee has a serious health condition that makes the employee "unable to perform the functions of the position of that employee," is an employee entitled to a leave of absence where the employee's serious health condition prevents him or her from working for a specific employer, but the employee is able to perform a similar job for a different employer? (2) Did defendant's failure to invoke the statutory procedure for contesting the medical certificate presented by plaintiff preclude it from later contesting the validity of that certificate?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 04/07/2008	43 Cal. 4th 201, 180 P.3d 321, 74 Cal. Rptr. 3d 570	S130839	Review - Civil Appeal	closed; remittitur issued

Disposition
Apr 7 2008	Opinion: Reversed

Dockets
Jan 18 2005	Petition for review filed   in Sacramento by counsel for appellant (Antonina Lonicki).
Jan 21 2005	Record requested
Feb 8 2005	Request for depublication (petition for review pending)   by Legal Aid Society-Employment Law Center (non-party)
Mar 16 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ. Brown, J., was absent and did not participate.
Mar 28 2005	Certification of interested entities or persons filed   for aplt.
Mar 28 2005	Request for extension of time filed   for aplt to file the opening brief on the merits. to 6-15-05
Mar 29 2005	Received additional record   two file jackets
Mar 30 2005	Extension of time granted   to 6-15-05 for aplt to file the opening brief on the merits.
Mar 30 2005	Certification of interested entities or persons filed   by counsel for resp
May 2 2005	Association of attorneys filed for:   Appellant ( Lonicki). David M. deRubertis, Esq.
Jun 9 2005	Request for extension of time filed   by counsel for appellant ANTONINA LONICKI
Jun 13 2005	Extension of time granted   to 6-29-05 for aplt to file the opening brief on the merits.
Jun 27 2005	Request for extension of time filed   on behalf of appellant ANTONINA LONICKI to file opening brief on the merits
Jun 29 2005	Extension of time granted   to 7-6-05 for aplt to file the opening brief on the merits.
Jul 6 2005	Opening brief on the merits filed   by counsel for appellant ANTONINA LONICKI
Aug 1 2005	Request for extension of time filed   by resp to file the answer brief on the merits, to 9-19-05.
Aug 10 2005	Extension of time granted   to 9-19-05 for respondent to file the answer brief on the merits.
Sep 1 2005	Request for judicial notice filed (granted case)   appellant Antonina Lonicki
Sep 14 2005	Request for extension of time filed   for resp to file the answer brief on the merits, to Oct. 19.
Sep 20 2005	Extension of time granted   to 10-19-05 for respondent to file the answer brief on the merits.
Sep 26 2005	Motion filed (non-AA)   to correct record on appeal>>appellant Antonina Lonicki
Oct 20 2005	Answer brief on the merits filed   Respondent (Sutter Health Central) CRC 40.1(b)/FedEx
Nov 2 2005	Request for extension of time filed   to file reply brief/merits to 12-29-05 appellant {LONICKI}
Nov 8 2005	Extension of time granted   to 12/29/05 for appellant to file the reply brief on the merits.
Dec 28 2005	Request for extension of time filed   reply brief/merits to 1-18-06 Plaintiff and Appellant Antonina Lonicki
Dec 30 2005	Extension of time granted   To January 18, 2006 to file appellant's reply brief on the merits.
Jan 17 2006	Request for extension of time filed   reply brief/merits to 2-20-06 Appellant Antonina Lonicki
Jan 23 2006	Extension of time granted   to Feb. 20, 2006 for appellant to file the reply brief in the merits.
Feb 21 2006	Request for extension of time filed   by Antonina Lonicki, appellant. requesting to 3/7/06 to file reply brief on the merits David M de Rubertis, counsel
Feb 28 2006	Extension of time granted   to March 7, 2006 to file appellant's reply brief on the merits.
Mar 8 2006	Reply brief filed (case fully briefed)   Appellant Antonina Lonicki [rule 40.1] Attorneys David M. deRubertis and Martin F. Jennings, Retained
Apr 6 2006	Received application to file Amicus Curiae Brief   Asian Law Caucus, et. al. in support of Appellant by counsel, Sharon Terman of The Legal Aid Society Employment Law Center.
Apr 6 2006	Received application to file Amicus Curiae Brief   Employers Group and California Employment Law Council
Apr 12 2006	Permission to file amicus curiae brief granted   Asian Law Caucus, et. al., in support of appellant. Answer due within 20 days.
Apr 12 2006	Amicus curiae brief filed   Asian Law Cacus, et al., in support of appellant. by counsel, Sharon Terman of The Legal Aid Society.
Apr 12 2006	Permission to file amicus curiae brief granted   Employers Group et. al., in support of respondent. Answer due within twenty days.
Apr 12 2006	Amicus curiae brief filed   Employers Group et. al., in support of respondent.
Apr 26 2006	Filed:   Application of The Legal Aid Society Employment Law Center to include itself in the amicus brief filed on April 12, 2006 on behalf of the Asian Law Caucus, etc.
Apr 28 2006	Request for extension of time filed   to file response to ac brief of Employers Group, Inc. etal to 5-15-06 Appellant Anonina Lonicki//Attorney David M. de Rubertis, Retained
May 1 2006	Order filed   the application of The Legal Aid Society Employment Law Center to include itself as amicus curiae in the brief filed by the Asian Law Caucus, et.al., on April 12, 2006, is hereby granted.
May 2 2006	Response to amicus curiae brief filed   To AC brief filed by Asian Law Caucus Sutter Health Central, Respondent by Charity Kenyon, counsel
May 3 2006	Extension of time granted   to May 15, 2006 for appellant ( Lonicki) to file the answer to amicus curiae brief filed by Employers Group.
May 12 2006	Request for extension of time filed   to file response to ac brief of Employers Group, etal to 5-22-06 Appellant Antonina Lonicki/Attorney David M. deRubertis
May 16 2006	Extension of time granted   to May 22, 2006 to file appellant's Amicus Curiae Brief submitted by the Employers Group and the California Employment Law Council.
May 23 2006	Response to amicus curiae brief filed   to ac brief of Employers Group & Calif Employment Law Council [rule 40.1] Appellant Antonina Lonicki Attorneys David M. deRubertis, etal
Jun 13 2006	Order filed   The order filed on May 16, 2006, extending time to serve and file briefing to and including May 22, 2006, is amended to read, in its entirety; "On applicaiton of appellant's and good cause appearing , it is ordered that the time to serve and file the appellant's Response to Amicus Curiae Brief submitted by the Employers Group and California Employment Law Council is exteneded to and including May 22, 2006.
Oct 24 2007	Change of contact information filed for:   Attorney Charity Kenyon along with substitution of counsel.
Oct 25 2007	Association of attorneys filed for:   Jeffery Owensby in association with Charity Kenyon for Respondent Sutter Health Central.
Dec 4 2007	Case ordered on calendar   Tuesday, January 8, 2008, at 9:00 a.m., in San Francisco
Dec 18 2007	Application filed   Application to divide oral argument time filed by counsel for appellent Lonicki; asking to share 10 minutes of time with counsel for amici curiae Legal Aid Society Employment Law Center et al.
Dec 26 2007	Order filed   The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Legal Aid Society Employment Law Center et al. 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Dec 28 2007	Received:   Respondent, Suter Central Health additional citations to which respondent may refer during oral argument. by Charity Kenyon, counsel
Dec 28 2007	Received:   Antonina Lonicki, appellant List of additional authorities. by David M. deRubertis, counsel
Jan 8 2008	Cause argued and submitted
Apr 4 2008	Notice of forthcoming opinion posted
Apr 7 2008	Opinion filed: Judgment reversed   The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with this opinion. Opinion by Kennard,J. -----George, C.J., Werdegar, J. Concurring and dissenting opinion by Chin,J. -----Baxter, Corrigan, JJ. Concurring and dissenting opinion by Moreno,J.
May 8 2008	Remittitur issued (civil case)
May 13 2008	Received:   Receipt for remittitur CA/3.
Jun 10 2008	Note:   Returned Superior Court record (2 Red folders) to Third District, Court of Appeal for delivery to Sacramento Superior Court.

Briefs
Jul 6 2005	Opening brief on the merits filed
Oct 20 2005	Answer brief on the merits filed
Mar 8 2006	Reply brief filed (case fully briefed)
Apr 12 2006	Amicus curiae brief filed
Apr 12 2006	Amicus curiae brief filed
May 2 2006	Response to amicus curiae brief filed
May 23 2006	Response to amicus curiae brief filed

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Jun 10, 2009 Annotated by diana teasland

Written by Allysun Atwater Key words: Index/Tags: CFRA, FMLA, Statutory Interpretation, Binding Notice, Ineligibility for leave, Job functions, Part-time work, Essential Job Functions, Work for a particular employer Summary: Healthcare employee takes CFRA leave after her job functions intensify under new supervision. Employer doubts the validity of her leave and requires her to see an employer approved physician and terminates her after determining that her leave is unjustified. Trial court enters summary judgment for employer, Court of Appeal affirms. Supreme Court grants review and holds that: (1) employer’s failure to obtain binding notice from a third physician agreed upon by both employer and employee did not estop employer from claiming that employee was ineligible for leave and (2) fact that employee continued to do part-time work with similar job functions for another employer did not establish ineligibility for leave. Reversed and remanded. Two concurring/dissenting opinions: Chin – agrees with holding 1, but not 2. Moreno – agrees with holding 2, but not 1. A nurse requested medical leave from a full-time job because of major depression and work-related stress. She also had a part-time job as a nurse for a different employer, but she did not take medical leave from the second job. The Court held that even though the employee had a part-time job performing the same duties that she claimed she could not perform for the first employer, that fact alone did not conclusively establish the employee did not have a “serious health condition” under the California Family Rights Act. The employee’s second job was simply evidence of her ability to perform the job from which she took leave. The Court also ruled that while employers are not required to obtain a third medical opinion as part of the FMLA/CFRA medical certification process, they run the risk a court or jury will disagree with the employer’s conclusion based on a second opinion that an employee does not have a “serious health condition.”