AUGUST 2007

JUDICIAL UPDATES

When On Notice of Employee’s Need for Medical Leave, Company Must Notify Employee of Rights Under CFRA/FMLA

Employee was in a 30-day psychiatric program. He provided Employer with documentation of a medical impairment. Upon expiration of the psychiatric treatment, Employee provided Employer with a medical certification form from his chiropractor. The form stated that Employee was still unable to perform his job duties for another 30 days. Employee informed Employer that any questions should be directed to his wife, his chiropractor, or his workers’ compensation attorney.

Employer tried to contact Employer directly several times, but received no response. Employer claimed that the chiropractor’s letter was not complete because it was from a chiropractor (as opposed to a medical doctor) and did not list any work restrictions. Employer never informed Employee of the availability of medical leave under the California Family Rights Act or its federal counterpart, the Family and Medical Leave Act. Employee was not aware that he could avail himself of these protections. Later, Employee was terminated for insubordination due to his failure to sustain an approved absence from work.

Under the CFRA, once an employee provides at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, employers subject to the CFRA are required to provide notice to the employees of the right to request CFRA leave. Of course, an employer may require certification from the employee’s healthcare provider.

In this case, the Court of Appeal held that Employee was on notice of Employee’s need for medical leave, but failed to give him notice of his rights under the CFRA. Although Employer argued that Employee failed to return phone calls, Employer could have contacted Employee’s wife, chiropractor or attorney. A chiropractor is a healthcare provider who could certify Employee’s health condition. (Faust v. California Portland Cement Co., Court of Appeal case number B190950.)

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