Founder and Managing Partner
Attorney of Counsel
Most employers have had employees request time off for medical reasons at some point, either for planned medical procedures, or when the employee is out unexpectedly and notifies the employer that he/she cannot return to work for some period of time. However many employers are unaware of the specific response and notification requirements that are triggered once they are put on notice of an employee’s need for medical leave. Certainly, for any type of leave of absence, you might want to consider generating documentation confirming with the employee the duration of the leave, how benefits payments will be handled during the leave, and what the employee’s reinstatement rights are. However, medical leaves warrant further documentation.
Specifically, once an employer is on notice that an employee needs time off work for a medical reason, the employer should provide a written response notice to the employee within 5 business days invoking the Family Medical Leave Act and California Family Rights Act. This notice must advise the employee of his/her rights under the law and request any further information that the employer needs to designate the leave or to certify the need for the leave. Once the employer can confirm that the employee and the nature of the leave qualify for protection under the FMLA and/or CFRA, the employer must designate the leave as FMLA/CFRA-qualified and indicate the commencement date of the leave in writing to the employee. If the employee is not eligible for leave under the CFRA or FMLA, the employer may still be obligated to grant a medical leave of absence as a reasonable accommodation for a disability and should discuss such obligations with legal counsel. In that situation, you might want to consider confirming the terms of the leave with the employee in writing.
It is also important to note that if the medical leave relates to the employee’s pregnancy or childbirth, the California Pregnancy Rights Act will come into play, which affects the employee’s rights under the other leave laws and also affects the content of the leave notification.
Each medical leave is unique to its own facts and must be evaluated and documented based on the individual situation. So you should have knowledgeable legal counsel advise you in each leave situation to ensure that the leave is handled and documented properly. Counsel can also assist with the proper response and designation notifications to the employees.