CACI No. 2611. Affirmative Defense - Fitness for Duty Statement

Judicial Council of California Civil Jury Instructions (2022 edition)

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2611.Affirmative Defense - Fitness for Duty Statement
[Name of defendant] claims that [he/she/nonbinary pronoun/it] refused to
return [name of plaintiff] to work because [he/she/nonbinary pronoun] did
not provide a written statement from [his/her/nonbinary pronoun] health-
care provider that [he/she/nonbinary pronoun] 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/nonbinary pronoun] health-care
provider of [his/her/nonbinary pronoun] fitness to return to work.
New September 2003
Sources and Authority
Certification on Health Care Provider: Child Care. Government Code section
12945.2(i).
Certification of Health Care Provider: Return to Work. Government Code section
12945.2(j)(4).
“Health Care Provider” Defined. Government Code section 12945.2(b)(9).
Notice and Certification. Cal. Code Regs., tit. 2, § 11088(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1056-1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:311,
12:880, 12:884, 12:915 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.26 (Matthew
Bender)
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