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EMPLOYERS MUST NOTIFY EMPLOYEES
OF THEIR RIGHTS UNDER CFRA
A recent California Court of Appeal case illustrates the importance of providing adequate notice to employees of their right to medical leave under the California Family Rights Act (CFRA). In Faust v. California Portland Cement Company, 2007 Cal. App. LEXIS 706 (May 10, 2007), the court held that the employer’s failure to explain CFRA requirements to an injured worker precluded any argument that the worker failed to provide sufficient documentation to support the need for a CFRA-qualified leave of absence.
The Law
Generally,
the CFRA requires an employer of 50 or more persons to provide employees with
up to 12 workweeks of leave in any 12-month period for qualified family and
medical reasons. An employer subject to the CFRA is required to notify
its employees of their right to request CFRA leave. The employer is also
required to provide its employees with “reasonable advance notice” of any
notice requirements it may adopt. 2
An employee is not required to expressly assert rights under CFRA to trigger the employer’s CFRA obligations. The employee need only provide verbal notice sufficient to make the employer aware of the employee’s need for CFRA-qualifying leave. Once the employee has provided such notice, it is the employer’s obligation to inquire further if additional information is necessary to determine whether the requested leave is for a CFRA-qualifying reason.
Faust v. California Portland Cement Company
The plaintiff in Faust left work claiming stress and anxiety due to alleged poor treatment by co-workers after he “blew the whistle” on co-worker illegal activities. At the conclusion of a 30-day psychiatric program, Faust sought treatment from a chiropractor for severe lower back pain. Faust submitted a medical certification from his chiropractor indicating he was “unable to perform his regular duties.”
After receiving the documentation from the chiropractor, the employer’s Human Resources Manager attempted to contact Faust to discuss the information provided. Faust’s wife returned the employer’s calls, stating that Faust was “too stressed out” to speak. Faust’s wife offered to address the employer’s questions, and suggested that the employer contact the chiropractor or workers’ compensation attorney if it needed any additional information. The employer chose not to speak to any of these third parties due to employee privacy concerns.
Instead, the employer’s HR Manager sent Faust a letter advising that the chiropractor’s certification was inadequate because: (a) the chiropractor did not appear qualified to provide a CFRA certification; and (b) the certification stated Faust could not perform “regular duties,” but did not place him “off work.” The employer gave Faust a week to respond and, when he failed to do so, terminated Faust for “insubordination.” Faust, in turn, sued the employer on several theories, including failure to provide CFRA leave and retaliation in violation of the CFRA.
The employer argued that it was relieved of its obligation to provide CFRA leave because Faust failed to provide adequate information to establish that the leave was CFRA-qualified. The court disagreed. The key fact, according to the court, was the employer’s failure to provide its employee with notice of CFRA rights once the employee provided notice sufficient to establish the need for a CFRA-qualifying leave. The court emphasized that an employer must refrain from taking adverse action against any employee for failure to substantiate a CFRA-qualifying leave if the employer itself failed to furnish the employee with adequate notice of his or her rights under CFRA.
The court was also convinced that Faust was not responsible for the failure of communication at the heart of the case. The court did not reject the employer’s contention that it could not speak with Faust’s wife or medical provider due to privacy concerns. The court avoided the issue, however, by stating that the employer should have obtained further information from the workers’ compensation attorney.
Practical Considerations
Faust
reminds
• Post and regularly audit all legally required employee notices, including the notice of employee rights to family and medical leave under CFRA; and,
• Notify employees, in writing, of their rights and obligations under CFRA as soon as the employer learns of facts that might support a CFRA-qualified leave of absence.
• Human Resources Managers
should train all supervisors to recognize potential CFRA-qualifying leave
requests and refer all CFRA matters directly to HR. Experienced HR
management is essential to protect
• HR Managers should develop clear and consistent CFRA policies, including template CFRA letters providing employees with specific information about their rights and obligations to provide supplemental documentation. CFRA policies and template letters should be developed and audited with the assistance of legal counsel.
• Finally, employers should consult with counsel in situations, such as Faust, in which an employee insists on communicating with the employer through a spouse, medical provider or other “representative.” Because employee privacy laws limit the extent to which an employer may discuss an employee’s personnel information with any third party, HR Managers should tread carefully in this area.