FMLA/CFRA Update: Antonina Lonicki v. Sutter Health

By
Megan K. Rogers

Antonina Lonicki v. Sutter Health, (2008) 43 Cal. 4th 201.

An employer’s failure to invoke the dispute-resolution mechanism of FMLA or CFRA, which allows a health care provider jointly chosen by the parties to determine the employee’s entitlement to medical leave, does not bar the employer from later claiming that the employee did not suffer from a serious health condition and was capable of performing her job.

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, such evidence does not conclusively establish the ability to do the job for the original employer. Although a similar part-time job is evidence of ability to do similar work, such evidence is not conclusive particularly when 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. Therefore whether the employee had 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.

The facts are as follows: Plaintiff worked for Sutter Health certified technician in the hospital's sterile processing department. Concurrently Plaintiff was also employed Kaiser in a near identical position on a part time basis. When Sutter Health became level II trauma center, Plaintiff requested medical leave due to stress which was certified by her personal physicians. However Defendant’s physician also examined Plaintiff and determined that she was able to return to work without restriction. Despite her inability to work at Sutter Health during this claimed disability period, plaintiff continued to work at Kaiser.

Based on Defendant’s physician’s report, Sutter Health requested Plaintiff to return to work or face termination. When Sutter fired the employee despite her personal physician's disability certification she brought suit under the CFRA/FMLA claiming that Sutter failed to follow the statutory procedures for resolving the dispute over inability to work since the parties did not proceed to a third examination after receiving conflicting reports regarding the nature and extent of Plaintiff’s serious health condition.