California Civil Jury Instructions (CACI)
2611. Affirmative Defense - Fitness for Duty Statement
[Name of defendant] claims that [he/she/it] refused to return [name of plaintiff] to work because [he/she] did not provide a written statement from [his/her] health-care provider that [he/she] was fit to return to work. To succeed, [name of defendant] must prove both of the following:
1. That [name of defendant] has a uniformly applied practice or policy that requires employees on leave because of their own serious health condition to provide a written statement from their health-care provider that they are able to return to work; and
2. That [name of plaintiff] did not provide [name of defendant] with a written statement from [his/her] health-care provider of [his/her] fitness to return to work.
Sources and Authority
Government Code section 12945.2(j) provides, in part:
(1) An employer may require that an employee's request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:
(A) The date on which the serious health condition commenced.
(B) The probable duration of the condition.
(C) An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
(D) A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.
(2) Upon expiration of the time estimated by the health care provider in subparagraph (C) of paragraph (1), the mployer may require the employee to obtain recertification, in accordance with the procedure provided in paragraph (1), if additional leave is required.
Government Code section 12945.2(k)(4) provides, in part: "As a condition of an employee's return from leave taken because of the employee's own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work."
Government Code section 12945.2(c)(6) defines "health care provider" as meaning any of the following:
(A) An individual holding either a physician's and surgeon's certificate issued pursuant to . . . the Business and Professions Code, an osteopathic physician's and surgeon's certificate issued pursuant to . . . the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.
(B) Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.
The Fair Employment and Housing Commission's regulations provide: "A request to take a CFRA leave is reasonable if it complies with any applicable notice requirements . . . and if it is accompanied, where required, by a certification." (Cal. Code Regs., tit. 2, § 7297.1(b).)
8 Witkin, Summary of California Law (9th ed. 2002 supp.) Constitutional Law, §§ 763B, 763C, pp. 171-174
1 Wilcox, California Employment Law (1989) Leaves of Absence, § 8.26 (Matthew Bender)
(New September 2003)