By: Lindsay Fitch
Just when you thought you finally understood employee rights and employer obligations under the Family and Medical Leave Act (“FMLA”), you realize that you are in California, where employee privacy rights loom large and the California Family Rights Act (“CFRA”) also comes into play. Although both laws are intended for the same purposes—to provide employees of larger employers with protected time off for various medical conditions and family situations—the CFRA tightens the reins on the information available to the employer. Of course you want to give your employees what they need, but you also want to make sure the request is legitimate.
So, as a California employer, what are you entitled to ask your employee about the need for CFRA leave? Far less than under the FMLA, it turns out. You can ask:
→ Is the employee qualified? Under both the FMLA and CFRA, employees are qualified for leave when they have a serious health condition or when they need to care for a family member with a verified serious health condition. A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves one of the following:
- Hospital care
- Absence (incapacity) plus treatment
- Chronic conditions requiring treatment
- Permanent/long term conditions requiring supervision
- Multiple treatments for certain (non-chronic) conditions
- Pregnancy (a serious health condition under FMLA, but not under CFRA)
→ How Should I Know? I’m Not a Doctor. Fortunately, you can require a medical certification to verify the serious health condition, which must include some specific information to be sufficient.
° Under the FMLA, you are entitled to know which part of the definition of “serious health condition” applies and the medical facts supporting certification, as well as an estimate of the number and nature of additional treatments that may be required; and whether the employee is unable to perform work of any kind.
° Under California law (the CRFA), the certification may not (without the employee’s specific permission) identify the serious health condition involved or any related medical facts. In fact, if the leave is for the employee’s own serious health condition, the certification is sufficient if it simply states that, in the health care provider’s opinion, the employee has a “serious health condition,” along with the health care provider’s contact information, the beginning date of the condition, and anticipated length of required leave. These limits on what can be disclosed are consistent with the California Medical Confidentiality Act and California’s Constitutional right to privacy.
° Due to these differences in what the employer is allowed to know, the FMLA certification form is not recommended for use in California.
→ So I Just Have to Take the Doctor’s Word? As a practical matter, California employers are more limited in their ability to question the validity of the medical certification (i.e., whether the employee’s ailment actually constitutes a serious health condition and/or whether the employee could perform the essential functions of his/her position) because you are not entitled to know what the condition is! In certain cases (e.g., if there is reason to doubt the validity of the certification), you can ask for a second or third opinion as to the employee’s own condition (but, under the CFRA, not for the condition of a family member).
Workplace Solution: Employers are entitled to demand compliance with eligibility and notification requirements once the employee provides notice of the need for CFRA leave. However, every employee’s situation is different. Review review the leave laws each time you get a leave request to determine whether the certification is “sufficient” under both California and federal law, or whether the law allows you to learn more. Navigate close calls with the help of counsel.