32 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com remain absence-free. Otherwise stated, the benefit of absenteeism forgiveness was a reward for working, and the CFRA does not require that an employee be allowed to accrue such benefits while on CFRA leave.33 The 2020 amendments to the CFRA replaced California’s short-lived New Parent Leave Act—an interim measure that made baby bonding available to employees of employers with only 20 employees within 75 miles (rather than 50). Now all types of CFRA leave are available to eligible employees of employers with five or more employees in the United States.34 CRD small employer mediation program. Indicating a concern about fostering new litigation for smaller employers affected by the 2020 expansion of the CFRA, the Legislature directed the DFEH (now the CRD) to create a small employer family leave mediation pilot program. Among other things, the program authorizes a small employer or the employee, within 30 days of a right-to-sue notice, to request mediation through the CRD’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.35 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 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. 36 2.3.2 Expansive definition of serious health condition The California Supreme Court has found that an employee’s ability to work in a limited capacity does not foreclose the employee from qualifying as having a “serious health condition.” The court reversed 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 after the employer learned she was working during her leave.37 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.
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