What are the employee's obligations while taking leave? [Dos/Don'ts in California]

Under both the Federally regulated Family Medical Leave Act or FMLA and the state-wide California Family Rights Act or CFRA, an employee is responsible for the following: give proper advanced warning of at least 30 days when the need for the leave is foreseeable. Alternatively, when the needed leave is not foreseeable, there is no amount of advanced warning required.

The employee must provide oral or written notice for leave, and the indicated leave request must fall within a covered reason. An eligible employee needs only to simply state their reason for leave. It can range from simple declarations like: “I need some time off for drug rehab,” or “I am going to be out for surgery.” However, when taking medical leave due to a serious health condition, an employee has to indicate the necessity for taking leave. A statement of taking sick days or missing work due to a doctor’s appointment is insufficient. If an employee is incapacitated and unable to adequately provide notice due to hospitalization or any other reason, then a relative, friend, or the employee’s physician may give notice on the part of the employee.

An employer can request that the employee fill out a written application for FMLA/CFRA leave. Still, if the said employee fails to provide written notice or cannot fill out such a form due to illness or injury, employers are not relieved from their obligation to provide the leave under FMLA and or CFRA. Employers can require their employees to submit medical certifications that spell out the need for a leave within 15 days of an employee’s request for leave. An employee’s health care provider must complete certifications. Under California law, an employer cannot disclose an employee’s medical facts without an employee’s written consent.

Under CFRA, employers in California have the option to use the form appearing in Title 2, Section 11097 of the state Code of Regulations. If the validity of an employee’s need for leave or the medical certification presented by an employee is questionable, employers can require the employee to obtain a second or third opinion at the company’s expense. However, an employer does not have the right to question or challenge the validity of a family member’s certification. A submitted form provided by a family member’s health care provider cannot be challenged, and a leave request must be granted.

Under California law, employees who fail to submit the required medical certification can be denied a designation of leave under both FMLA and CFRA leave. Employers then have the right to terminate any individual’s employment for the employee being absent without leave. However, it is in the best interest of an employer to make several attempts to obtain medical certification from an employee’s physician and to document each attempt before denying a designation of FMLA/CFRA leave. Taking such precautions are necessary given the likelihood that an employee fired for failing to provide medical certification will sue for denial of leave.

In the event that an employee takes a subsequent FMLA/CFRA leave for the same reason as a prior certified medically cleared absence, and if the maximum amount of available leave time was not used, then the employee is not required to provide an additional medical certification for the new leave. An employee that takes another FMLA/CFRA leave for another medically cleared reason must submit a new medical certificate.