Moonlighting may not disqualify employee from CFRA leave

Do you have employees who work for you full time, but also work elsewhere part time? If so, a recent California Supreme Court decision may affect how you handle requests for California Family Rights Act (CFRA) leave.

An employee who continues to moonlight at a job that’s essentially the same as her full-time position isn’t automatically disqualified from receiving CFRA leave.

Recent case: Sutter Health Services hired Antonina Lonicki to work in the housekeeping department at its hospital in Roseville. She progressed to a position as a certified technician in the hospital’s sterile processing department.

Then, the hospital became a level II trauma center. Lonicki claimed the change increased her workload and stressed her out.

Lonicki also worked at another hospital part time, doing essentially the same job as she did at Sutter Health.

A shift change at Sutter Health apparently sent Lonicki over the edge. One day she burst into tears and went home, allegedly too upset to work. She requested vacation time off, but the hospital denied it. Then she sought a medical excuse to take leave. She brought a doctor’s note to work and requested a one-month leave of absence. A few days later, the hospital occupational health doctor met with her for a few minutes and told her she was able to return to work with no restrictions despite the other medical excuse. The hospital said if she didn’t report to work, she would be fired.

Interestingly, while Lonicki was seeking leave from her full-time job, she didn’t miss any shifts at her part-time position.

Lonicki sought counseling, and a psychiatrist said she was “disabled by major depression,” that her symptoms were “work related,” that she required “sick leave” and could not return to work. She delivered the note, but Sutter Health fired her anyway for failing to report to work.

Lonicki then sued under CFRA, alleging the hospital violated the law by firing her. The hospital said she wasn’t eligible for CFRA leave. CFRA, it argued, covers only “serious health conditions” that leave an employee “unable to perform the functions” of her job. It reasoned that if she could perform the same functions elsewhere, she could do them at her full-time job.

The lower court dismissed her case, reasoning that her ability to work her second job was conclusive proof that she could do her full-time job, too.

The California Supreme Court disagreed. It said that a trial was in order to decide whether she was incapable of working the first job while still being able to work the second. (Lonicki v. Sutter Health Central, No. S130839, Supreme Court of California, 2008)

Final note: The court also answered another vexing CFRA question: Must an employer use the CFRA’s “tie-breaking” mechanism if the employer’s doctor disagrees with the conclusions of the employee’s doctor? The CFRA allows an employee and employer to jointly choose a doctor, who then examines the employee.

The Supreme Court said employers aren’t required to use the third-opinion option.