California Family Rights (CFRA) Explained
In 1991, the Legislature enacted California Family Rights Act (CFRA) (Gov. Code,10 § 12945.2). CFRA "is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security." Generally, CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant a request by an employee to take up to 12 workweeks in any 12-month period for family care and medical leave.
CFRA has two principal components: (1) a right to leave of up to 12 weeks in any 12-month period to care for a family member or for the employee's own medical condition, and (2) a right to reinstatement in the same, or a comparable, position at the end of the leave. "Violations of CFRA generally fall into two types of claims: (1) 'interference' claims in which an employee claims that an employer denied or interfered with her substantive rights to protected medical leave, and (2) 'retaliation' claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave."
Further, in order to ensure that employees are aware of their rights under CFRA, employers who are subject to CFRA are required to provide notice to their employees of the right to request CFRA leave. (Cal. Code Regs., tit. 2, § 11095, subd. (a); see also Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).) The text of the minimum notice requirements is set forth at California Code of Regulations, title 2, section 11095, subdivision (d). Failure of the employer to give or post the required notice regarding an employee's right to request CFRA leave precludes an employer "from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).)
It is generally an unlawful business practice "for a covered employer to refuse to grant, upon reasonable request, a CFRA leave to an eligible employee." (Cal. Code Regs., tit. 2, § 11088, subd. (a).)13
Requesting CFRA Leave / Notice Requirements
CFRA does not itself define what constitutes a valid "request" for CFRA leave. Instead, the Legislature expressly delegated to the Fair Employment and Housing Commission (the Commission) the task of adopting a regulation specifying the elements of a reasonable request for CFRA leave. (§ 12945.2, subd. (a).) CFRA does require that if an employee's need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave. CFRA is silent with respect to how an employee may request leave for a CFRA-protected purpose that is not foreseeable.
The regulation adopted by the Commission regarding requests for leave provides in relevant part that, to request CFRA leave, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. 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 mere mention of 'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. In other words, if an employee states: "I need to take time off for x surgery, or because I am sick and my doctor is putting me off work" this is a sufficient notice, even if the employee doesn't mention the term CFRA or FMLA specifically. The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)).
The regulation permits employers to require that employees provide at least 30 days' advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member. (Cal. Code Regs., tit. 2, § 11091, subd. (a)(2)) However, the regulations provide that this 30-day general rule is inapplicable when the need for medical leave is not foreseeable: "If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(3)). Further, "an employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave, so long as the employee provided notice to the employer as soon as practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(4)). For your reference, please see sample FMLA / CFRA request here.
Medical Certification Requirements
The implementing regulations further detail that an employer may require that the employee provide the necessary medical certification supporting request for CFRA leave within no less than 15 calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification. Absent extenuating circumstances (e.g., unavailability of healthcare provider), if the employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. The same rules apply to re-certification. If the employee never produces the certification or re-certification, the leave is not CFRA leave. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of his or her failure to provide adequate certification." (Cal. Code Regs., tit. 2, § 11091, subd. (b)(3)).
CFRA has two principal components: (1) a right to leave of up to 12 weeks in any 12-month period to care for a family member or for the employee's own medical condition, and (2) a right to reinstatement in the same, or a comparable, position at the end of the leave. "Violations of CFRA generally fall into two types of claims: (1) 'interference' claims in which an employee claims that an employer denied or interfered with her substantive rights to protected medical leave, and (2) 'retaliation' claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave."
Further, in order to ensure that employees are aware of their rights under CFRA, employers who are subject to CFRA are required to provide notice to their employees of the right to request CFRA leave. (Cal. Code Regs., tit. 2, § 11095, subd. (a); see also Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).) The text of the minimum notice requirements is set forth at California Code of Regulations, title 2, section 11095, subdivision (d). Failure of the employer to give or post the required notice regarding an employee's right to request CFRA leave precludes an employer "from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).)
It is generally an unlawful business practice "for a covered employer to refuse to grant, upon reasonable request, a CFRA leave to an eligible employee." (Cal. Code Regs., tit. 2, § 11088, subd. (a).)13
Requesting CFRA Leave / Notice Requirements
CFRA does not itself define what constitutes a valid "request" for CFRA leave. Instead, the Legislature expressly delegated to the Fair Employment and Housing Commission (the Commission) the task of adopting a regulation specifying the elements of a reasonable request for CFRA leave. (§ 12945.2, subd. (a).) CFRA does require that if an employee's need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave. CFRA is silent with respect to how an employee may request leave for a CFRA-protected purpose that is not foreseeable.
The regulation adopted by the Commission regarding requests for leave provides in relevant part that, to request CFRA leave, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. 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 mere mention of 'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. In other words, if an employee states: "I need to take time off for x surgery, or because I am sick and my doctor is putting me off work" this is a sufficient notice, even if the employee doesn't mention the term CFRA or FMLA specifically. The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)).
The regulation permits employers to require that employees provide at least 30 days' advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member. (Cal. Code Regs., tit. 2, § 11091, subd. (a)(2)) However, the regulations provide that this 30-day general rule is inapplicable when the need for medical leave is not foreseeable: "If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(3)). Further, "an employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave, so long as the employee provided notice to the employer as soon as practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(4)). For your reference, please see sample FMLA / CFRA request here.
Medical Certification Requirements
The implementing regulations further detail that an employer may require that the employee provide the necessary medical certification supporting request for CFRA leave within no less than 15 calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification. Absent extenuating circumstances (e.g., unavailability of healthcare provider), if the employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. The same rules apply to re-certification. If the employee never produces the certification or re-certification, the leave is not CFRA leave. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of his or her failure to provide adequate certification." (Cal. Code Regs., tit. 2, § 11091, subd. (b)(3)).