Written by Galen T. Shimoda, Jennet Zapata, and Kristin LaRoi
At some point in time, an employee will have to take time off from work to deal with a personal medical issue, care for a loved one or bond with a newborn child. However, extended absences from work are not always welcomed by employers. An employer may discourage or deny an employee’s request for time off or even fire the employee.
In California, state and federal law provide eligible employees with up to 12 weeks’ leave for qualifying purposes, including for the serious medical condition of a family member or the birth of a child. The Family and Medical Leave Act (“FMLA”) establishes the federal right to leave, while the state protections fall under the California Family Rights Act (“CFRA”). In certain respects, the CFRA provides broader protections for the employee then its federal counterpart; but, for the most part, the CFRA mirrors the FMLA.
Both state and federal law set forth specific notice requirements that the employer and employee must comply with. An employee must provide verbal notice sufficient to make an employer aware of his or her need for leave, as well as medical certification. In most situations, the failure to comply on the part of the employee may lead to denial of leave and at most, termination; however, the employer’s failure to comply can result in substantial financial and legal liability. These consequences can have a chilling effect on small businesses.
It is important for an employer to closely follow the notice requirements. The failure to do so can lead to an interference claim by an employee, where an eligible employee was denied leave. Such was the case in Faust v. Portland Cement Company, 150 Cal. App. 4th 864 (2007), where the employer failed to inform the employee of his right to CFRA leave. An interference claim under the CFRA can also arise anywhere from discouraging an employee from taking leave to failing to post notice in a conspicuous location. The employer has to be careful to comply with notice requirements including providing employees with information regarding their rights to leave as well as answering questions from employees regarding leave policies. An employer can be on the hook for back pay, front pay, punitive damages and other compensatory damages including, but not limited to costs and attorney’s fees.
The failure to comply with notice requirements can also prevent an employer from denying leave to an employee that may actually be ineligible. This can occur in such situations where the employee relied on the employer’s statements approving leave but, later the employer realizes that the employee is ineligible. The employer has the duty to determine whether an employee’s leave is for a qualifying purpose; if the employer needs further information, it is the employer’s burden to request it. The employer must also provide a designation notice within five (5) days of the employee’s leave request, providing the employee with approval or denial of the leave. The failure to do so prohibits an employer from denying leave or may lead to a possible interference claim.
As one can see, it is important for the employer to understand and follow the notice requirements pertaining to FMLA/CFRA leave as well as keep the lines of communication open. The failure to do so can open an employer up to liability and can strain a relationship with a good employee. If you have any issues relating to FMLA/CFRA leave, please contact our office.