This topic contains the following information:

• Responding to Requests for Family and Medical Leave
• Declining Use of FMLA Leave
• Retroactive Leave Designation
• Denying Family and Medical Leave

Responding to Requests for Family and Medical Leave

When you have enough information to determine if the leave is being taken for a CFRA and/or FMLA qualifying reason, you must notify the employee in writing whether the leave will be designated and counted as CFRA and/or FMLA.

CFRA and FMLA regulations require employers to notify an employee whether the leave will be designated and counted as CFRA and/or FMLA leave within five business days after you have enough information to determine whether the leave is for a qualifying reason (e.g., after receiving a medical certification). If you deny the request for leave, FMLA regulations require you to state at least one reason why.

The FMLA designation notice can be given at the same time as the FMLA - Notice of Eligibility and Rights and Responsibilities if the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee’s need for leave. Employers can give CFRA notice and designation information with the CFRA Notice and Designation form.

Although the employer is required to respond within these set time frames, the response can include a request for additional information.2

You can use the following designation notices to notify employees whether the request has been approved, or denied, or to request more information and give conditional approval of the request:

• CFRA Notice and Designation (Five to 49 Employees)
• CFRA Notice and CFRA/FMLA Designation (50 or More Employees)
• FMLA Designation Notice
• FMLA/PDL Designation Notice

• CFRA Notice and Designation (Five to 49 Employees)
• CFRA Notice and Designation (Five to 49 Employees) - Spanish
• CFRA Notice and CFRA/FMLA Designation (50 or More Employees)
• CFRA Notice and CFRA/FMLA Designation (50 or More Employees) - Spanish
• FMLA Designation Notice 
• FMLA Designation Notice - Spanish 
• FMLA PDL Designation Notice
• FMLA PDL Designation Notice - Spanish

If an employee requests to use paid leave for a CFRA or FMLA qualifying purpose but does not explain the reason for the leave (consistent with your established policy or practice) and you deny the leave, the employee must provide sufficient information to establish a qualifying reason for leave.

After the employee provides enough information to validate the need for leave under the CFRA and/or FMLA, you can then count the leave, paid or unpaid, against the employee's 12-week entitlement.

An employee who uses paid leave and then seeks an unpaid extension for a CFRA and/or FMLA qualifying event must state the reason for the extension. If the extension is for an event that occurred during the period of paid leave, you can count the leave used after the qualifying event against the employee's 12-week entitlement.

Example: An employee takes a two-week family vacation. At the beginning of the second week of vacation, the employee’s child falls, breaking numerous bones. The employee seeks an additional two weeks of CFRA/FMLA leave to take the child to doctor’s appointments and to provide for the child’s physical care. The employer may count three weeks against the employee’s CFRA/FMLA leave entitlement: the second week of the employee’s vacation as well as the two weeks of unpaid leave.

If an employee requests additional leave for the same reason as the first leave, the employee need not meet the eligibility tests again to re-qualify for additional leave within the 12-month period. The employee is entitled to take additional leave for the same reason as the first leave.

If the additional leave is requested for a different reason than the original leave, the employee must re-qualify (for example, the first six weeks of leave was for care of a newborn and additional leave is requested for the employee’s own illness).

If an employee requests vacation time or paid time off (PTO) without referring to a qualifying purpose, CFRA regulations state that you cannot ask if the employee is taking the time off for a CFRA leave-qualifying purpose.

If you deny the employee’s request, and the employee then provides information that the requested time off is (or may be) for a CFRA leave-qualifying purpose, then you may inquire further into the reasons for the absence.

• An employee can waive the right to CFRA and/or FMLA by refusing to provide certification of the need for leave. If this happens, you are under no obligation to provide the leave. Or, if an employee resigns and refuses to give you enough information on the need for leave, the employee has waived the right to FMLA or CFRA. Carefully document the employee’s refusal and consult counsel about sending written notice to the employee that failure to comply with the certification process resulted in a denial of FMLA/CFRA rights.

Declining Use of Family and Medical Leave

What if you have an employee who requests leave for a CFRA and/or FMLA qualifying reason (e.g., their own serious health condition) but they don't want to use CFRA or FMLA, only accrued paid time off, so they can save their CFRA and FMLA leave for later use — can they do that?

In a 2014 case, the Ninth Circuit held that an employee could decline to exercise her leave rights under the FMLA, even when she was taking time off for a reason that would qualify for FMLA purposes. The court held that an employee can decline to use FMLA leave to preserve the leave for future use, and that this is not the same as a permanent waiver or relinquishment of the right.

The court noted that if the employee chooses not to exercise FMLA rights for a particular leave of absence, it’s logical that the employee also gives up any FMLA protections.3

The federal Department of Labor (DOL) expressly disagreed with Escriba in a 2019 opinion letter that states employers are prohibited from:

• Delaying designation of FMLA-qualifying leave, even if the employee would prefer that the designation be delayed; and
• Designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

According to the DOL, a practice that allows employees to exhaust paid time off before starting FMLA leave would not be permissible because an employer can neither delay designation of leave as FMLA-qualifying nor provide the employee with more than 12 weeks of protected FMLA leave.

California courts have not specifically addressed this issue with regard to CFRA leave.

• The court’s decision in Escriba has caused confusion for California employers because it is counter to the FMLA requirements regarding designation. In addition, failing to properly designate FMLA leave can be risky because it may expose employers to FMLA interference claims. Although the DOL has explicitly rejected the holding in Escriba and clearly stated its position that employees cannot decline the use of FMLA-qualifying leave, Escriba is still binding in the Ninth Circuit, which includes California.

• Exercise caution. This is a complicated compliance area and could lead to FMLA interference claims. Consult with legal counsel if you have an employee who does not want to use CFRA and/or FMLA leave for a qualifying reason.

Escriba highlights some best practices, including:

• Make sure you understand what type of leave an employee is asking for when they request time off
• If leave appears to be for a CFRA and/or FMLA qualifying reason, discuss the employee's right to request protected leave under CFRA and/or FMLA.
• Provide the CFRA Notice and FMLA - Notice of Eligibility and Rights and Responsibilities form if the employee requests CFRA/FMLA-related leave or when you acquire knowledge from the employee that the leave may be for a qualifying reason. Better to be safe and provide the notice because failing to provide it can result in liability
• Maintain appropriate documentation

If an employee specifically indicates that the employee does not want to take a leave of absence but intends to resign, you are not responsible for:

• Offering family medical leave
• Reserving the employee’s job
• Reinstating the employee when the need for the absence is over

Retroactive Leave Designation

Employees may need leave for a CFRA and/or FMLA qualifying reason and be unable to provide advance notice. For example, a pregnant employee may deliver early or an employee and/or family member may experience a medical emergency. In these cases, you may not learn of the need for leave for a day or more. You may be able to retroactively designate the time as CFRA and/or FMLA, depending on the type of leave and the circumstances.

FMLA regulations provide that if leave is not designated, employers can retroactively designate leave as FMLA provided the failure to timely designate the leave as FMLA does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, you and an employee can mutually agree that leave be retroactively designated as FMLA leave.4

CFRA regulations provide that employers may not retroactively designate leave as CFRA leave after the employee has returned to work, except with appropriate notice to the employee and where the employer’s failure to designate the leave in a timely manner does not cause harm or injury to the employee.5

Denying Family and Medical Leave

Some employees who request CFRA or FMLA will not be eligible for the leave. Document denial of family and medical leave for employees who:

• Fail to provide required medical certification of the need for leave.
• Are not eligible for FMLA/CRFA because they have not worked for the employer for a year or have not worked 1,250 hours in the prior year.
• Exhausted their 12 weeks of FMLA/CFRA in the current 12-month period.
• Are not eligible for FMLA because they do not work within 75 miles of 50 employees.
• Exhausted their 26 weeks in the current 12-month period if the leave is to care for an ill or injured servicemember.

FMLA regulations require employers to give at least one reason to an employee when leave is denied.6

1. 29 CFR sec. 825.300(d)

2. Olofsson v. Mission Linen Supply, 211 Cal. App. 4th 1236 (2012)

3. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014)

4. 29 CFR sec. 825.301(d)

5. 2 CCR sec. 11091 (a)(1)(B)

6. 29 CFR sec. 825.700(b); 2 CCR sec. 11088(c)