I am the manager of the Food Service Division at a local resort. One of the employees that I supervise is out on a stress related medical leave. She is a waitress, and has a history of problems getting along with me and one of the co-workers on her shift. While dining at a local restaurant last week, I saw my employee working as a waitress in another restaurant. When I asked her about it, she said that she works at the local restaurant four nights per week, but she cannot return to her waitress job at the resort. This does not make sense to me. Can we force her to return to work, discipline her, or terminate her employment because she is working at another restaurant?


Your question raises an issue that some employers struggle with in granting and managing an employee’s medical leave. The issue is whether an employee is eligible for medical leave if she is able to waitress at another restaurant, but claims she is unable to waitress at your resort.

Both the California Family Rights Act (CFRA), and the Federal Family Medical Leave Act (FMLA) allow a qualified employee to take a total of twelve workweeks in any twelve-month period for family care and medical leave. CFRA and FMLA apply only to employers who employ fifty or more persons, and a qualified employee is a person who has more than twelve months of service with the employer and has worked at least 1,250 hours with the employer during the previous twelve-month period.

An employee may be eligible for CFRA or FMLA leave for his/her own serious health condition that makes the employee unable to perform the functions of the job. This means the employee is either “unable to work at all or unable to perform any one or more of the essential functions of the position of that employee.”

Several cases have discussed whether “the essential functions of the position of that employee” means the employee’s ability to perform her job with her current employer, or whether it means she cannot perform the job for any employer. In a recent case decided in Sacramento, the plaintiff worked at Sutter Health Central in the hospital’s sterile processing department. The job involved a high workload and stressful work environment. The plaintiff took an identical job for Kaiser Hospital and acknowledged that she was capable of performing her duties at Sutter if she were assigned to a “less stressful shift.” Sutter terminated her employment, reasoning that the employee was not eligible for medical leave because she did not have a serious health condition that made her unable to perform the essential functions of her position, since she was working the identical job in a different hospital. The Third District Court of Appeal in Sacramento upheld the termination, stating that CFRA and FMLA provide for a temporary leave as a legal right when, as a result of a serious medical condition, an employee cannot perform the essential functions of her job, but they do not permit an employee to miss work that she is capable of performing and then claim entitlement to leave.

But, you should be aware that there are federal cases that interpret the FMLA to allow leave if an employee is not capable of performing the essential functions of the job for a specific employer, as opposed to the job functions in general.

Therefore, in order to determine if your employee can perform the essential functions of her job with your resort, you would have to compare the waitressing duties she is performing at the local restaurant, to the waitressing duties she performs under your supervision at the resort. If the essential duties of the two jobs are the same, you may require the employee to return to work at the resort or provide a medical certification explaining why she cannot return to her job. If the duties are the same in both jobs, the employee may have a difficult time establishing that she suffers from a serious health condition that makes her unable to perform her job. However, your employee may claim that she cannot waitress in your resort because of the different duties or different conditions in your restaurant.
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