California court tells sick employee: If you can’t come back in time, you can’t come back
12 weeks is 12 weeks, according to a recent decision of the California court of appeal. If an employee taking leave under FMLA or its California analog CFRA is unable to, or chooses not to, return to work at the end of her 12 weeks, she has no claim against her employer.
Maybe, and maybe not.
The case is Rogers v. County of Los Angeles. Plaintiff Katrina Rogers was the personnel officer in the executive office of Los Angeles County, and provided support directly to the County’s board of supervisors. In early April, 2006, Rogers took a stress-related leave of absence from work. In a letter to Rogers, the County characterized the leave as “family/medical/CFRA” leave.
A week later, the County appointed Sachi Hamai as the new executive officer — i.e., Rogers’s boss. Hamai reorganized the office, moving some functions, including Rogers’s, under a new administrative deputy. Hamai also decided to bring in a new personnel officer in place of Rogers because she “felt that somebody outside the organization would come in and would be independent, objective, maybe perhaps could provide some fresh eyes into the organization.” Hamai viewed her decision to transfer Rogers to another position as “a business decision.” She testified that the fact Rogers was on leave when she made her decision had “absolutely” nothing to do with her decision. Hamai located another allegedly “comparable” position for Rogers in a different department. All of these changes happened during the first 12 weeks of Rogers’s leave.
Rogers did not return to work until August, 2006, 19 weeks after beginning her leave. When told of the change in her job, Rogers was irate. She said she did not consider the new position comparable to her old position, because she was no longer be supervising or managing anyone, but instead was doing high-level staff work. Her new boss apparently agreed (or at least that’s what he said at trial). Rogers left early on her first day back, called in sick for the rest of the week, then abruptly retired.
But instead of spending more time with her grandson as she had intended, she decided to spend more time with lawyers, and quickly sued the County for violation of her rights under CFRA. Rogers claimed the County interfered with her rights under CFRA by not reinstating her to the same or a comparable position. She also contended the County retaliated against her for taking her leave of absence. The case was tried to a jury, which returned a $350,000 verdict in Rogers’s favor. The County appealed the judgment, asserting there was insufficient evidence to support her claims — mostly because, the County said, she hadn’t returned to work when her leave entitlement ran out, and thus she had virtually no rights under CFRA.
The court of appeal agreed with the County, and reversed the judgment. The court began by dismissing the interference claim due to Rogers’s untimely return to work:
Here, the following is undisputed—the County accorded Rogers the full 12 workweeks of leave to which she was entitled under the CFRA; Rogers did not return to work at the end of this period, but instead remained on leave for 19 weeks; and the decision to transfer her was made within the 12-week leave period, but never communicated to Rogers during her leave. Rogers nevertheless argues that she suffered interference with her CFRA rights because the transfer decision was made during her protected CFRA leave. But she cites no authority to support her position, which we therefore disregard. Based on the foregoing, we conclude that Rogers’s right to reinstatement expired when the 12-week protected CFRA leave expired. Her CFRA interference claim therefore fails as a matter of law, and should never have been submitted to the jury.
The court also threw out the retaliation verdict, holding that the County had submitted “undisputed evidence” that Hamai’s decisions were “motivated only to further her plan to reorganize the Executive Office,” and thus “Rogers failed to establish the requisite causal connection between her protected actions in taking a CFRA medical leave and the decision to transfer her to another position.”
The decision is obviously favorable to employers, and appears to establish a bright line for claims under CFRA — come back on time or you have no rights at all.
But employers’ elation should be tempered somewhat by what the decision did not say. There was absolutely no discussion about the impact of the ADA or analogous provisions under California’s Fair Employment and Housing Act. It’s not entirely clear why the court, or the plaintiff, ignored the possibility that an employee might be entitled to additional leave under the ADA as a reasonable accommodation of a disabling health condition. But both the California courts and the EEOC have been quite clear that inflexible leave policies — those that end for everyone after a certain period of time, regardless of individual circumstance — may violate the ADA and its California cousin.
Employers, this is a good decision for you, but it is likely to be somewhat limited to its facts. Smart plaintiffs lawyers will probably be much more inclined to append an ADA claim to such lawsuits in the future. And employers should be ready in all cases where an employee seeks additional leave to discuss individual issues and potential accommodations — including extra leave.
So perhaps the best takeaway from the case is this: 12 weeks is 12 weeks. Except when it isn’t.