“Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee . . . , and to give notice of the designation to the employee.”
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FAMILY MEDICAL LEAVE UPDATE
Hospital Visit Should Have
Alerted Employer To CFRA Coverage
But Termination
Not Disability Discrimination
By Christopher W. Olmsted
California employers covered by the California Family Rights Act (“CFRA”) must promptly respond to employee requests for leave. But what happens when the qualified employee never actually requests leave? A recent California appellate court decision says that the employer may still need to grant CFRA protections if the employee provides mere hints of CFRA coverage.
In a case titled Avila v. Continental Airlines, an employee was hospitalized for acute pancreatitis and missed four days of work. He called in sick each day he was absent. When he returned to work, he provided two medical forms from Kaiser Permanente establishing that he had been hospitalized.
The company recorded the days off as “recordable absences.” Seven absences annually, according to company policy, resulted in termination, but certain absences, including FMLA/CFRA absences, did not count towards the total. Here, the company did not record the absences as FMLA/CFRA protected because Mr. Avila did not request such leave.
A month after the pancreatitis episode, Mr. Avina missed more work. Managers terminated him for excess absenteeism. Mr. Avina sued, alleging several causes of action, including (1) retaliation for taking a CFRA-protected leave; (2) disability discrimination.
CFRA Definition of Serious Medical Condition
In general, CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee’s request to take up to 12 workweeks in any 12-month period for family care and medical leave.
“Family care and medical leave” includes “[l]eave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the
position of that employee.”
A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential health care facility. (b) Continuing treatment or continuing supervision by a health care provider.
Mr. Avila’s medical condition qualified him for CFRA leave. The acute pancreatitis put him in the hospital for three days.
What Counts As Requesting Leave?
Continental argued that even though Mr. Avila could have qualified for CFRA medical leave, his leave was not protected. The company argued that neither Avila’s calling in sick nor the Kaiser forms constitute “requests” for CFRA leave because in neither case did Avila “request” or “ask for” leave.
The court of appeal rejected Continental’s argument. Continental got it half right. That plaintiff called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition. But Mr. Avila also provided Continental with the Kaiser forms. One Kaiser form indicated that plaintiff had been hospitalized for three days. The note potentially put Continental on notice that Mr. Avila’s absence met the CFRA definition of “serious health condition.”
Here is the fundamental problem for Continental and all employers: CFRA does not define what constitutes a “request” for leave. Instead, notes the appellate court, a CFRA regulation provides that to request CFRA leave, “[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave.” FMLA is no different.
“The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.”
The burden is on the employer, not the employee. The CFRA regulation further provides: “Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee . . . , and to give notice of the designation to the employee.”
The fact that this case involved an emergency meant the employee had more latitude. “In a case involving a medical emergency, notice on a hospital’s preprinted form that an employee was hospitalized and unable to work may be sufficient to inform an employer that the employee might have suffered a serious medical condition under CFRA.” Such information may be “sufficient to make the employer aware that the employee needs CFRA-qualifying leave,” and thus may constitute a “request” for leave under CFRA.
The appellate court therefore concluded that Continental’s motion for summary judgment (seeking to dismiss the case) should be denied. The court noted that Continental could argue to the jury that the Kaiser note was insufficient notice. But of course, “tell it to a jury” is never something an employer wants to hear.
Disability Claim Rejected
The appellate court rejected Mr. Avila’s disability discrimination claim. The managers who made the termination decision could not have formed the intent to discriminate against Mr. Avila based on a disability. They had no idea that he was disabled.
The Kaiser forms did not contain sufficient information to put Continental on
notice that plaintiff suffered from a disability. The forms communicated only that Avila was unable to work on four work days due to an unspecified condition, and that he was
hospitalized for three days. The forms did not specify that Mr. Avila suffered from
pancreatitis or any other condition that qualified as a disability under FEHA.
Thus, the hospital forms were sufficient to put the employer on notice of CFRA coverage, but not enough to put it on notice that he had a qualifying disability under FEHA.
Practical Tips.
Learn CFRA and FMLA requirements. Attend our Leaves of Absence Seminar on November 13, 2008.
Maintain clear handbook policies regarding notice requirements. Prepare leave request forms.
Train managers and supervisors. Conduct training regarding CFRA coverage. Managers should be on alert for extended absences (particularly involving three or more consecutive days) or absences involving hospital stays.
Train employees on leave request procedures.
Follow up. In the event of such absence, follow up with employees to inquire regarding possible FMLA/CFRA coverage. Document the response (or lack of response).
Call it. Designate all covered leaves and deduct from the 12 week leave bank.
More Legal Update articles.
Download entire September Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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