?Under both the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), an employee is required to provide at least 30 days’ notice of the need for leave when the need for leave is foreseeable. When the need for leave is not foreseeable, no amount of advance notice is required.
?The employee must request leave, orally or in writing, and indicate that the leave is for a covered reason, but there is no requirement that the employee refer specifically to the FMLA or the CFRA. For an eligible employee to say simply “I need some time off for drug rehab” or “I am going to be out for back surgery” is sufficient notice of the employee’s need for leave.
On the other hand, the employee must indicate that a medical leave is necessary for a serious health condition. An employee stating only that he is going to take a sick day, or that she will miss work for some doctors’ appointments, is not sufficient. If the employee is unable to provide notice because he or she is hospitalized or otherwise incapacitated, a relative, a friend or the employee’s physician may communicate the employee’s need for leave.
You may request the employee to complete a written application for FMLA/CFRA leave, but if the employee fails to do so or is unable to do so on account of illness or injury, you are not relieved of your obligation to designate the leave as FMLA/CFRA leave if you have sufficient information to warrant such a designation.
You may require an employee to submit a medical certification of the need for leave within 15 days of the employee’s request for leave. This certification must be completed and signed by the employee’s health care provider. You should not use the U.S. Department of Labor medical certification form, Form WH-380, because it asks the health care provider to list medical facts justifying the employee’s need for leave, and medical facts may not be disclosed under California law without the employee’s written consent.
Instead, use the form appearing at Title 2, Section 11097 of the California Code of Regulations. If you doubt the validity of the medical certification or of the employee’s need for leave, you may require the employee to obtain a second and even a third opinion at the company’s expense. You may not, however, challenge the validity of the certification of a family member’s health care provider submitted in support of an employee’s request for leave to care for a family member.
If the employee fails to submit the required medical certification, you may deny designation of the leave as FMLA/CFRA-protected leave and terminate the employee for being absent without leave. As a practical matter, though, it is best to make several attempts to obtain the medical certification form from the employee or his or her physician, and to document those attempts, before denying designation of FMLA/CFRA leave, given the likelihood that an employee fired for failing to provide medical certification will sue for denial of leave or retaliation.
Should an employee take a subsequent FMLA/CFRA leave for the same reason as a prior leave when medical certification was provided and the maximum amount of available leave was not taken, the employee does not need to provide a new medical certification of the need for leave. If an employee takes another FMLA/CFRA leave for a different reason, a new medical certification would need to be submitted.
This article is excerpted from Chapter 15 of the newly released California Employment Law: A Guide for Employers, Revised and Updated for 2022 by James J. McDonald, Jr.
