What are the employer's obligations when an employee takes leave? [Dos/Don'ts in California]

California employers are required to determine whether a leave is covered under the Federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) within five days after receiving all the required information from an employee. The employer is then required to provide written notice either granting or denying the said FMLA/CFRA leave request.

A leave (under both FMLA and CFRA guidelines) can be retroactively designated to the first day of an employee’s absence for a qualifying condition. Employers are required to explain an employee’s rights and responsibilities while on leave, along with a guarantee (in writing if the employee requests documentation) that their position will be reinstated in the same or an equivalent position when they return from the leave. In the case of denying or rejecting a leave request, an employer must provide at least one reason for denying an FMLA/CFRA leave request.

While an employee is on FMLA/CFRA leave, an employer does not have to pay their employee. The employee can choose to use, or an employer can require an employee to activate their accrued vacation time or paid time off (PTO) for the unpaid portion of their FMLA/CFRA leave.

Employees receiving partial wage replacement benefits during an FMLA/CFRA leave, like state disability benefits, have the ability to (with the agreed consent of their employer) use their vacation, PTO, or paid sick leave to supplement their partial wage replacement benefit. Employees providing care for serious health conditions of a family member or bonding with a child is considered to be on “paid leave.” Under these circumstances, employers require their employees to use paid accrued vacation or PTO.

An employee’s group health insurance benefits are required to be continued by his or her employer during an FMLA/CFRA leave on the same terms as if he or she was still on the job. Employees may still be required to pay the same portion of their insurance premium while on leave. An employer has the option to cancel an employee’s coverage if the employee fails to pay their premium within 30 days of the due date. However, in order to enact this cancellation, employers need to provide 15 days’ notice and issue a COBRA notice. If an employee wants to reinstate their coverage upon returning to work, their coverage must be reinstated free from conditions or additional waiting periods.

An employer can recover from an employee the paid premiums for maintaining the employee’s group health care coverage during any period of unpaid FMLA/CFRA leave under the following conditions:

  • If an employee fails to return from leave at the time of its expiration ( Employees are deemed to have failed to return from leave if said employee works less than 30 days after returning. However, an employee who chooses to retire during the first 30 days after returning is defined as having returned from leave).
  • Failure on the part of an employee to return from leave other than the continuation, recurrence, or onset of a serious health condition that previously entitled the employee to FMLA/CFRA leave or any other “force Majuere” circumstances that an employee has no control over.
  • After an employee has completed their FMLA/CFRA leave, he or she must have the ability to return to a comparable position that has the same duties, working conditions, and compensation. Employers can require that the returning employee’s physician provide a medical release stating that the employee is able to come back to work without any restrictions. It is also within the employer’s rights to require that the returning employee undergo a fitness-for-duty examination due to any doubts that the employer might have revolved around the ability that the employee can adequately perform their job functions. This test is also to measure if the returning employees are posing a threat to their health and safety along with the health and safety of other staff.

Finally, employers can refuse or deny the reinstatement of a returning employee if the employee was going to be terminated if they had not been on leave. One instance would be a larger layoff of employees that include the employee; the administration is not required to reinstate the employee. If serious crimes such as misconduct like theft or embezzlement come to light while the employee is on leave, then the employer has the right to terminate the employee.