The opinion of the court was delivered by: LEGGE
OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Under the Family Medical Leave Act ("FMLA" or "the Act"), 29 U.S.C. § 2601. et seq., an eligible employee with a "serious health condition" is entitled to up to twelve weeks of medical leave. 29 U.S.C. § 2612(a)(1)(D). An employer may require an employee seeking medical leave to provide certification that he has a serious health condition. If an employer has reason to doubt the validity of the medical certification presented by the employee in support of his request for medical leave, the employer "may" require the employee to obtain a second opinion. 29 U.S.C. § 2613(c). If the second medical opinion differs from the first medical opinion, the employer "may" require the employee to obtain a third medical opinion. 29 U.S.C. § 2613(d)(1). The third medical opinion "shall" be binding. 29 U.S.C. § 2613(d)(2).
These cross-motions concern the employer's right to challenge the employee's initial medical certification in a later civil action under the Act, where it failed to exercise its option of requiring the employee to obtain second and third medical opinions. Specifically, the issue is whether defendant, who denied plaintiff's request for leave without utilizing the second and third medical opinion procedures set out in section 2613, may in this action challenge the validity of the medical certification submitted by plaintiff in support of his request for medical leave.
In summary, the court holds that where the employer did not seek a subsequent medical opinion within a reasonable time period after the employee submitted his initial certification of a serious health condition, the employer may not now challenge here the validity of the initial medical certification submitted by the employee. In addition, where the employee's initial certification was sufficient under the Act to establish that he had a serious health condition, the employer may not deny leave based on a minor deficiency in the certification if it did not meet its obligation under the Act to notify the employee of the perceived deficiency and provide him a reasonable opportunity to cure it.
Plaintiff Curtis Sims was a bus driver for defendant Alameda-Contra Costa Transit District ("AC Transit") for twenty-five years. He did not report to work from April 18, 1994 through May 3, 1994. Under AC Transit's attendance policy, an unexcused period of absence constitutes an "occurrence." An employee may receive a five day suspension for his ninth occurrence, and may be terminated for his tenth occurrence, in a rolling one-year period.
Sims alleges that in April 1994 he was suffering from a back injury which caused him severe back pain and caused him to limp. He alleges that he spoke with an AC Transit manager about his injury and his need to take time off to take care of it. AC Transit concedes that before Sims' absence of April 18-May 3, 1994, some management personnel at AC Transit, including plaintiff's immediate supervisor, were aware that plaintiff had a back problem.
On April 16, 1994, a day on which Sims was not scheduled to work, Sims visited a physician at a Kaiser Hospital. The doctor recommended that he take time off from work, and prescribed treatment including prescription medication and physical therapy. The physician gave Sims a Kaiser Visit Verification Form stating that Sims would be unable to work from April 16 through April 25, 1994. Sims was not scheduled to work on April 17.
Sims contends that on April 18, 1994, he woke up unable to move because of back pain. He called into work and told the dispatcher that he needed to be "put on the sick book." AC Transit alleges that the same day it issued a "Come See Me" notice to Sims. Such notices require the employee to see his supervisor, and are routinely issued by AC Transit management when an employee incurs an absence which may result in discipline. Sims did not respond to the notice, and alleges that he never received it.
Sims visited Kaiser Hospital again on April 26, 1994 and saw a different doctor. He received another Visit Verification Form, this time stating that he would be unable to work during the period April 26 - May 1, 1994. Sims then saw a chiropractor on April 29 and May 2, 1994, who provided Sims with a "return to work order" stating that Sims would be able to return to work on a trial basis on May 4, 1994. Sims was not X-rayed in connection with his back problem during this period.
AC Transit concedes that during Sims' absence, he went into the bus yard on at least three occasions and signed the "sick book." Sims returned to work on May 4, 1994. Upon his return, he provided his three medical slips to AC Transit. That same day he received a letter from AC Transit dated April 26, 1994, informing him that management had classified his absence as his ninth occurrence in twelve months, and intended to suspend him for five days. Sims appealed the proposed suspension, but it was sustained after a first-level disciplinary hearing on May 16, 1994. He served a 5-day suspension without pay.
Sims was again ill and absent from work on July 11 and 12, 1994. On July 19, 1994, AC Transit notified Sims that it intended to terminate him under its attendance policy because it considered his July 11-12 absence to be his tenth occurrence in twelve months. Apparently Sims also challenged that decision, but the decision was upheld by an expedited arbitration panel on August 17, 1995.
Sims filed a complaint with the Department of Labor on November 30, 1995. He filed a complaint with the California Department of Fair Employment and Housing ("DFEH") on March 26, 1996. On June 11, 1996 the DFEH issued Sims a right-to-sue letter.
Sims filed this action alleging that AC Transit interfered with his rights under FMLA and the California Family Rights Act ("CFRA") by failing to provide him with notice of his rights and obligations under FMLA, and by terminating him based in part on an absence which was due to a serious health condition. He contends that his April 18-May 3, 1994 absence was due to a "serious health condition," and that it was therefore protected medical leave under FMLA and CFRA. As protected leave, he argues, the April 18-May 3, 1994 absence should not have counted as an unexcused absence or an "occurrence" under AC Transit's attendance policy. His tenth "occurrence" in July 1994 was therefore only his ninth, he argues, and was insufficient to support his termination under AC Transit's attendance policy.
The motions now before the court are Sims' motion for partial summary adjudication and AC Transit's cross-motion for summary judgment. AC Transit argues that as a matter of law Sims did not suffer from a "serious health condition" within the meaning of the FMLA and is therefore not entitled to the Act's protections. Sims contends that AC Transit waived its right to argue in this action that he did not have a serious health condition, because (1) he submitted medical certification which established that he did have such a condition, (2) AC Transit failed to obtain additional medical opinions pursuant to the certification procedures of 29 U.S.C. § 2613, and (3) AC Transit did not inform him that the certification he submitted was in any way inadequate.
IV. THE FAMILY MEDICAL LEAVE ACT
Congress enacted the Family Medical Leave Act of 1993 in part "to entitle employees to take reasonable leave for medical purposes." 29 U.S.C. § 2601(b)(2). FMLA entitles eligible employees to a total of twelve workweeks of leave during any twelve-month period due to, among other things, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.112(a)(4).
Employees who take leave pursuant to the Act are entitled to return to the same or equivalent positions as they had prior to the leave. 29 U.S.C. § 2614(a)(1).
The Act defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves -- (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11)(A)&(B). The Department of Labor's interim regulations define "continuing treatment by a health care provider."
" Continuing treatment by a health care provider" means, in relevant part, that "the employee or family member in question is treated two or more times for the injury or illness by a health care provider." 29 C.F.R. § 825.114(b)(1).
The Act defines "health care provider" as "(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services." 29 U.S.C. § 2611(6). See also 29 C.F.R. § 825.118(a)(1)-(2). The Secretary of Labor has defined others "capable of providing health care services" to include "Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.). . . ." 29 C.F.R. § 825.118(b)(1) (emphasis added).
A serious health condition involving continuing treatment by a health care provider must also involve a "period of incapacity requiring absence from work . . . of more than three calendar days." 29 C.F.R. § 825.114(a)(2).
B. Certification Requirements
An employer may require that the employee's request for leave "be supported by a certification issued by the health care provider of the employee." 29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(a). "An employer must give written notice of a requirement for medical certification . . . in a particular case." 29 C.F.R. § 825.305(a). "In most cases, the employer should request that an employee furnish certification from a health care provider at the time the employee requests leave or soon after the leave is requested." 29 C.F.R. § 825.305(b). "At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification." 29 C.F.R. § 825.305(c).
An employee's medical certification "shall be sufficient" if it states --
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;
(B) . . . a statement that the employee is unable to perform the functions of the position of the employee;
29 U.S.C. § 2613(b). Importantly, "the employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305(c).
The Act sets out the following certification procedure an employer may utilize if it questions the validity of the medical certification submitted by the employee:
In any case in which the employer has reason to doubt the validity of the certification provided . . . the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any ...