Disabled in one job may not mean disabled in another

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Many disabled workers must take time off from work under the Family Medical Leave Act (FMLA), or, if in California, under the California Family Rights Act (CFRA). Such leave is available to workers for a "serious health condition."  It is illegal for an employer to fire a worker for taking such leave. If a worker is fired for taking such leave, she may sue for retaliation in court. To prevail on such a lawsuit, the worker must prove she suffered from a "serious health condition" at the time the leave was sought or taken. A “serious health condition” is one which renders the worker unable to work at all or unable to perform one or more of the "essential functions" of her position. 

 

What are “essential functions”?  The “essential functions” of a job are those duties and responsibilities that the individual who holds the position must be able to perform, with or without the assistance of a reasonable accommodation. Marginal functions of the positions are excluded. Whether a particular job function is essential is determined on a case-by-case basis, by considering the nature of both the particular work and the particular workplace. In approaching this inquiry, “consideration shall be given to the employer's judgment as to what functions of the job are essential.” Relevant factors in determining a position's “essential functions” include: (1) Whether the employer currently requires all employees in the position to perform the functions that the employer states are “essential”; (2) Whether removal of functions currently required would “fundamentally alter” the position's nature, which in turn depends on whether the position exists to perform a particular function, whether the number of other employees among whom the job function may be distributed is limited; and whether the position is highly specialized and requires an employee with certain expertise or skill; and (3) Whether the duty in question could easily be redistributed (delegated) to other employees; if so, this fact suggests (but does not prove) that the function is “marginal” and not “essential.” Regular attendance and punctuality, ability to get along with supervisors and coworkers, ability to handle normal workplace stress, and ability to follow supervisor's directions may be essential functions of a job.

 

Many workers have two jobs at the same time for which they are employed part time. The essential functions of one of the jobs may be different from the essential functions of the other. Therefore, a worker's serious health condition may make it impossible to perform the essential functions of one job while not interfering with the essential functions of the other. In Lonicki v. Sutter Health Care, the California Supreme Court considered this circumstance.

 

Here are the facts of Lonicki. The plaintiff worked for Sutter Health (the eefendant) as a technician at one of its hospitals. At one point her supervisor changed her schedule and increased her workload so much that Lonicki became upset and informed her supervisor she could not work due to the stress caused, in part, by the change in schedule. Lonicki than took one month off for “FMLA leave.” The employer approved Lonicki’s request and designated the time off as FMLA/CFRA leave. HOWEVER, WHILE ON LEAVE, Lonicki continued to work part-time for Kaiser – ANOTHER EMPLOYER - performing basically the same kind of work.   The defendant asked the judge to dismiss the case, arguing that the plaintiff could not truly have had a “serious health condition” if she was able to keep working for the other employer.

 

The California supreme court decided that the plaintiff’s continued employment at Kaiser did not necessarily mean that she did not have a “serious health condition” with respect to her duties at the hospital. The Court said that the key question in such a case where an employee keeps working while on leave is whether her medical condition (stress) precluded her from performing the essential functions of her position at the defendant, not from performing the duties of any position for any employer. Federal cases have basically said the same thing: 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.HOWEVER, the Supreme Court also cautioned that the plaintiff’s ability to continue working for Kaiser was “strong evidence” of her ability to perform her duties for the defendant

 

In view of this court case, an employee may take medical leave away from one job to accommodate a disability or serious health condition while continuing to work for a different employer so long as the second job does not have duties that the employee is unable to perform in the job she seeks leave from.