At the end of a recent CER webinar on FMLA/CFRA certifications, Allen Kato fielded several questions from employers related to leaves of absence in California. Topics included requiring notice for intermittent leave, timing of receipt of certification, and employee requirements when calling out of work.
Q. If an employee has to travel 15 miles to work, and he’s been restricted to no commercial driving and no driving to and from work, what is our obligation? He is a warehouse employee and we don’t require him to drive.
A. If the employee cannot drive – and is not required to during work – it sounds like this individual would still be “fit for duty,” meaning he can still perform all of the essential functions of the job, but simply cannot get to and from work.
Legally speaking, the ability to get to work on time on a daily basis is the employee’s issue. However, it would be better to consult with counsel about this. There may not be a need for FMLA time off at all since the individual has not indicated any restriction that prohibits his ability to perform the work.
Q. If an employee doesn’t return the initial certification in a timely manner, should the employer give the employee more time to submit? Or immediately deny the FMLA/CFRA leave?
A. My suggestion on that, after you’ve given the full 15-day period, is to have a discussion with the employee. What you’re probably going to hear is that the doctor is on vacation or some other reason why the employee was unable to get the certification. In that case, where there is some valid reason for the need for more time, giving additional time is suggested.
Conversely, if you give them an extension and they still do not return the leave – and you’ve only provisionally approved the leave pending certification – you may end up concluding that their failure to comply with their obligations means it was not FMLA leave and is in fact job abandonment. However, it is suggested to confer with your own counsel and discuss all of the facts involved—this is a high-risk termination situation.
Q. Can we require 30 days advance notice for intermittent FMLA leave?
A. It depends on the circumstances. In most cases, no. Much of the time with intermittent FMLA, you’ll have a certification stating the need for intermittent leave, and often there may not be notice of a flare-up of the condition. Conversely, if the intermittent leave is for a series of treatments, then it should be possible to schedule these in advance and you’ll be able to work with the employee to create an advance schedule that works for all.
Q. Can we require our employees to mention FMLA when calling off of work?
A. Actually, no. No employee has an obligation to use “magic words.” The employer must receive information that a reasonable employer would interpret to mean they are requesting an FMLA-covered time off. If it’s unclear, then of course you can get more information and provide information about FMLA (such as the legally-required notice and the medical certification form). If they do not follow through on these, then it’s not going to be FMLA covered.
Q. As far as intermittent leave for maternity leave, how can one start this leave? Only when the employee is out due to maternity leave issues?
A. The short answer is that there should be a medical certification completed by the doctor. The doctor will list the restrictions or limitations. It may not be black and white; it may need to be negotiated with the employee to work out something that will work within the restrictions without being unreasonable for the employer.
The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse.” To register for a future webinar, visit CER webinars.
For more questions and answers on CFRA/FMLA leave, see our related article.
Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.
An employee is on intermittent FML. He works overtime that is not voluntary due to staffing shortages. He then calls in sick the following day. This has happened 5 times in the calendar year and is a pattern. Can we require a Doctor’s note if we suspect abuse?
In the question about giving an employee more time to submit, do you risk setting a precedent if you do so? Can you get in trouble if you later decline to offer such an extension to another employee?