32 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com employee, within 30 days of a right-to-sue notice, to request mediation through the DFEH’s dispute resolution division. The request would suspend the employee’s civil action, and toll the limitations period for related claims, until the mediation is complete. The law will be repealed on January 1, 2024.34 2.3.1 Employee right to rely on spokesperson while on leave Ordinarily, an employer can discipline an employee on leave who refuses to communicate. But the Court of Appeal reversed a summary judgment for an employer that had dismissed an employee on leave for refusing to respond to repeated follow-up inquiries regarding his condition, and for insisting instead that any communication be through his wife or his workers’ compensation attorney or his physician. To the employer, the employee’s behavior was a clear case of insubordination, warranting dismissal, but the Court of Appeal found a triable issue of whether the employer had been reasonable in insisting on direct communication with its employee. The employee’s psychiatrist had advised him to avoid stressful situations and he had felt “too stressed out” to speak with his employer directly. The Court of Appeal concluded that “nothing precluded [the employer], at a minimum, from contacting [the workers’ compensation] attorney,” and that the record thus supported an inference that the employer had unreasonably refused to communicate with the employee’s representatives. 35 2.3.2 Expansive definition of serious health condition The California Supreme Court has reversed a summary judgment in favor of a hospital that dismissed a technician for being absent under suspicious circumstances and then defying an order to return to work.36 She had submitted a physician’s note supporting a 30-day leave for “medical reasons,” which the employer disputed by sending her to a second physician, who opined that she could return to work without restrictions. The employer relied on this second opinion in firing the plaintiff. The technician sued the hospital for firing her without following CFRA procedures, arguing that the hospital’s failure to seek yet a third medical opinion stopped the hospital from challenging her serious health condition. The California Supreme Court made two rulings. First, an employer can challenge an employee’s assertion of a serious health condition without having to use the CFRA’s dispute resolution method of obtaining a binding determination on the employee’s condition from a third, jointly chosen, health care provider. This was a narrow employer victory through a 4-3 vote. Second, by the same narrow margin, the Supreme Court rejected the employer’s argument that the employee’s ability to perform a similar job during her absence conclusively disproved her claim that she had a “serious health condition” that made her “unable to perform the functions of a technician’s position.” Rather, this fact was merely “strong evidence” for the employer to take to the jury. 2.3.3 Expansive construction of requests for CFRA leave The Court of Appeal revived the claim of an employee who had been discharged for excessive absenteeism.37 The employee admittedly never requested CFRA leave and the managers who discharged him relied on his habitual absences, without knowing he had been hospitalized. Yet the Court of Appeal reversed the summary judgment against him, holding that he arguably had requested CFRA leave—thereby triggering an employer duty to inquire into his situation—when he submitted a medical form indicating he had been in the hospital.38 2.3.4 Employer response obligations clarified CFRA regulations provide a deadline for the employer’s response to a request for leave.39 An employer need not affirm or deny a request within five business days, but rather must “respond to” a request within that time. It is sufficient, therefore, for an employer to address a request and seek additional information from the employee; the employer need not reach its final decision within the five-day period.40
RkJQdWJsaXNoZXIy OTkwMTQ4