?Within five days of receiving all required information, a California employer needs to determine whether a leave is covered by the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or both, and must provide written notice to the employee designating the leave as FMLA/CFRA-covered leave or not.
The leave may be designated retroactively to the first day of the employee’s absence for the FMLA/CFRA-qualifying condition. You must also provide an explanation of the employee’s rights and responsibilities while on leave, and you must provide a guarantee (in writing if the employee requests it) that the employee will be reinstated in the same or an equivalent position.
If you deny the employee’s request for FMLA/CFRA leave, you must provide at least one reason for such denial.
You do not have to pay an employee while on FMLA/CFRA leave. An employee may elect to use, or you may require an employee to use, accrued vacation or paid time off (PTO), other than accrued sick leave, during the unpaid portion of an FMLA/CFRA leave. An employee may also elect to use, or you may require an employee to use, any accrued sick leave during the unpaid portion of an FMLA/CFRA leave if the leave is for the employee’s own serious health condition.
If an employee is receiving a partial wage replacement benefit during the FMLA/CFRA leave, such as state disability benefits, you and the employee may agree to have vacation, PTO or paid sick leave supplement the partial wage replacement benefit. An employee receiving paid family leave to care for the serious health condition of a family member or to bond with a new child is not on “unpaid leave,” and so you may not require the employee to use paid accrued vacation or PTO.
You must continue the employee’s group health insurance benefits during FMLA/CFRA leave on the same terms as if the employee continued working. If the employee pays a portion of his or her insurance premium, he or she may be required to pay the same portion while on leave. If the employee fails to pay the premium within 30 days of the due date, you may cancel his or her coverage after providing 15 days’ notice and issue a COBRA notice. If the employee wishes to reinstate coverage upon returning from leave, however, coverage must be reinstated without any waiting period or conditions.
You may recover from an employee the premiums paid for maintaining the employee’s group health care coverage during any period of unpaid FMLA/CFRA leave provided the following conditions are met:
- The employee fails to return from leave at its expiration (an employee is deemed to have failed to return from leave if he or she works less than 30 days after returning from leave, but an employee who retires during leave or during the first 30 days after returning is deemed to have returned from leave).
- The employee’s failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitled the employee to FMLA/CFRA leave, or other circumstances beyond the control of the employee.
Upon completion of an FMLA/CFRA leave, an employee must be returned to the same position he or she left or to a comparable position with the same duties, compensation and working conditions. You may require a medical release from the employee’s physician that confirms the employee is able to return to work with or without restrictions. You may also require the employee to undergo a fitness-for-duty examination if, after the employee returns from leave, you have a good faith doubt, based on objective ?evidence, regarding the employee’s ability to perform his or her essential job functions without posing a direct threat to his or her own health or safety, or the health or safety of others.
You may refuse reinstatement to the employee if he or she would have otherwise been terminated had the employee not been on leave. For example, if a layoff occurred while the employee was on leave that would have included the employee, you need not reinstate him or her. Likewise, if while the employee was on leave, you discover that he or she committed serious misconduct, such as theft or embezzlement, you may terminate the employee.
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.
