Workers’ and employers’ rights under the California Family Rights Act

From the Law Office of Beeson, Tayer & Bodine

When employees request leave under the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), their employer is entitled to request information confirming the employee’s eligibility for leave.

The employer is permitted to request proof of the serious medical condition in the form of a certification from the employee. When the leave is foreseeable and the employee has given 30 days advance notice of the leave request, the employer can require the employee to provide the medical certification before the leave begins.

When the need for leave is not foreseeable, the employee must provide the requested certification to the employer within the time requested by the employer, which cannot be less than 15 calendar days after the employer's request.

The employer must give the employee additional time if, despite the employee's diligent, good faith efforts, he or she is unable to obtain the certification in that time.

Under CFRA, the certification is legally sufficient, and the employer cannot ordinarily refuse to accept it, if it contains the following information: the date on which the serious health condition commenced; the probable duration of the condition; and a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.

Under FMLA, the certification should also contain the diagnosis and methods of treatment. But under CFRA, which applies to most California employees, the medical diagnosis and method of treatment is confidential and need not be included in the certification.

CFRA administrative regulations contain the following rules for employers that question an employee’s medical certification.

* If the employer believes the certification is defective, it must give the employee an opportunity to fix it.

* The employer may not refuse the certification unless it has reason to believe that the employee is not entitled to the leave.

* Even if the employer doubts the employee is entitled to the leave, they cannot compel the employee’s doctor to provide additional information. Instead, the employer may seek a second opinion, at the employer’s cost. If the second opinion disagrees with the first, the employer may seek a third opinion.

* If the third opinion confirms the second, the employer may deny the leave and is protected from a lawsuit by the employee. If it confirms the first, however, the employer must permit the leave.

But the California Supreme Court recently decided, in Lonicki v. Sutter Health Center, 43 Cal.4th 201 (2008), that employers are not required to follow the CFRA medical dispute resolution procedure when they dispute an employee’s documentation certifying eligibility for CFRA leave. Instead, the Court ruled, employers may deny the leave without seeking additional opinions, provided the employer has a valid basis to do so.

The employee may contest the employer’s decision, and the employer will not be immune from suit as it would be had it followed the CFRA procedures.

On the other hand, some courts have ruled that the federal FMLA rules, which are comparable to the CFRA rules, do compel the employer to seek a second and third opinion before it may deny leave.

Thus an employer that refuses medical leave without getting a second and third opinion does so at its peril.

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