Employee Can Work Similar Job For Another Employer and Still Get Medical Leave

Assume your employee comes to you and requests medical leave.  You grant the leave, and then later learn that while on medical leave, the employee has been performing a similar job for another employer.  Does this prevent the employee from continuing on the medical leave that you granted?  Not necessarily, according to the recent California Supreme Court opinion in Lonicki v. Sutter Health Central.  According to this opinion, the employee's work for another employer in a similar job is evidence that the employee could have performed the job for the leave-granting employer.  But it is not conclusive evidence.  The court gave an example of an emergency room employee.  An emergency room that treats a high-volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few injuries.  In addition, one position might be full-time, while the other might be part time.

This ruling will make it harder for California employers to challenge employee medical leave requests, because almost no two jobs are exactly alike.  So long as some distinction can be found between the positions at issue, the employee will have an argument that work for another employer in a similar position does not prevent the employee from remaining on leave.  Employers can take some solace in the fact that this situation is probably fairly rare, although, given this opinion, that may change.