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State and federal laws create specific posting and notice obligations for employers to explain employees’ family and medical leave rights.
Employers may require employees to provide advance notice before FMLA/CFRA leaves begin.
Covered employers have both posting and notice obligations. Use the following forms to assist you with your documentation requirements:
You must post general family and medical leave notices in a conspicuous place where applicants and employees tend to congregate. There are two separate general notices; one for the federal FMLA and one for the state CFRA. Both describe employees’ rights to leave under these laws.
FMLA regulations require employers to provide all notices relating to FMLA leave in the language in which a significant portion of the workforce is literate.1 California law states that if the workforce at any facility or establishment contains 10 percent or more of people who speak a language other than English as their spoken language, you must translate the posters and notices for those employees into every language that is spoken by at least 10 percent of the workforce.2
The poster and text must be large enough to be legible and easily read.
The CFRA posting requirement is separate from the requirement for California employers with 5 or more employees to post the Pregnancy Disability Leave Notice. For more information, see PDL Notice Requirements“Employer Posting and Notice Requirements for PDL” in Pregnancy Disability Leave Notice Requirements.
The state and federal notices should be distributed to new and current employees and also incorporated into employee handbooks.
Under federal law, the information is required to be incorporated into an employee handbook or other written guidance to employees concerning employee benefits or leave rights. If such written materials do not exist, the notice should be distributed at the time of hire. The employer can either simply hand out a duplicate of the federal notice or use a similar format as long as it contains all of the information in the federal notice.3 The FMLA authorizes electronic posting of this information.
Under California law, if you publish an employee handbook that describes other kinds of personal or disability leaves available to your employees, you must include a description of family and medical leave in your handbook.4 Make sure you include the method that you use for calculating leave eligibility in your employee handbook. See Calculating Weeks for Leave for more information.
The state regulations also provide that employers are encouraged to:5
When an employee requests CFRA leave or when you learn that requested leave may be for a CFRA qualifying reason, CFRA regulations require you to respond to the employee’s request as soon as practicable and no later than five business days after receiving the request.6 Employers should provide the employee with notice of their rights under CFRA using the CFRA Notice contained in either the CFRA Notice and Designation (Five to 49 Employees) form or the CFRA Notice and CFRA/FMLA Designation (50 or More Employees) form.
If you are also covered by the FMLA, the FMLA requires you to notify the employee of the employee’s eligibility to take FMLA leave and of the employee’s rights and responsibilities within five business days of receiving the employee's request, absent extenuating circumstances.7 Employers may use the FMLA - Notice of Eligibility and Rights and Responsibilities form to meet this requirement. Employers covered by both laws should provide the CFRA and FMLA notices at the same time.
The FMLA - Notice of Eligibility and Rights and Responsibilities must state whether the employee is eligible for leave. If the employee is not eligible for FMLA leave, the notice must state at least one reason why. For example, the notice may inform the employee that the employee is ineligible because the employee worked less than 1,250 hours in the preceding 12 months.
If the leave request is related to pregnancy, also provide the employee with the Pregnancy Disability Leave - Notice. For more information, see “Employer Posting and Notice Requirements for PDL” in Pregnancy Disability Leave Notice Requirements.
The notice must also detail the specific expectations and obligations of the employee and explain consequences for not meeting those expectations and obligations. The notice must include, when appropriate:
The notice can also include additional information, such as whether the employer will require periodic reports of the employee’s status and intent to return to work.
Failure to provide notice of the employee’s rights to take family and medical leave can result in liability.
The employer must also designate leave as FMLA and/or CFRA qualifying and provide notice of designation. See Family Leave Designation for information regarding the designation notice and timelines for providing this separate notice to employees.
You can require that employees provide at least 30 days’ advance notice before family and medical leave begins if the need for the leave is anticipated (the expected birth of a child or planned medical treatment). The employee must consult with you and make a reasonable effort to schedule any planned medical treatment or supervision to minimize disruption of company operations (subject to the health care provider’s approval).
If it is unknown when leave is required to begin, a change in circumstances happens or a medical emergency exists and it is not possible for the employee to give 30 days’ notice, the employee must give notice as soon as is feasible. You cannot deny leave for an emergency or unforeseeable personal or family circumstances because the employee did not provide advance notice of the need for the leave.
In the case of leave for a qualifying exigency, the employee must give notice of the need for such leave as soon as possible and practical, regardless of how far in advance the leave is needed.
California regulations require an employee to provide at least verbal notice requesting a CFRA-qualifying leave and the leave’s anticipated timing and duration. An employee need not explicitly claim rights under, or even mention, CFRA or FMLA. However, the employee must communicate that the leave is needed for a qualifying reason to meet the notice requirement.
The mere mention of “vacation,” other paid time off or resignation does not mean the employee’s notice is insufficient so long as the underlying reason is CFRA-qualifying and the employee tells the employer that reason. The employer can inquire further to determine if the employee is seeking family and medical leave.
The employee is required to respond to the employer’s questions to determine if the leave qualifies for protection. Failure to respond may result in denial if the employer can’t determine if the leave qualifies.
The burden is on the employer to communicate with the employee if it needs more information. For example, in one case, an employee took one week of approved CFRA leave and then allegedly notified her supervisor that she needed additional leave. She provided documentation, which the employer denied receiving. The employer terminated the employee after five days of unexcused absences, per its policy, and the employee sued for retaliation under CFRA. The court denied the employer's motion for summary judgment, concluding the case should go to a jury because the employer knew the employee was out for medical leave but never engaged with her when she didn't return to work. Instead, the employer just waited out the five days and then terminated employment.8
If the employee asks to take time off but doesn’t reference a qualifying purpose, an employer can’t ask if the time off is for a qualifying reason. For more information, see Family and Medical Leave Designation. If the employer denies the employee's request and the employee then provides information that the requested time off is or may be for a qualifying purpose, the employer may inquire further into the reasons for the absence.
In one case, an employee requested a one-week vacation to spend Christmas with his parents in Michigan, commenting on his parents’ deteriorating health and his concern that their death might be near. The employer denied the request because no open vacation slots existed for that week. The employee sued, alleging that the employer violated the CFRA by denying his request for family leave.
The court said the request to spend the Christmas holiday with parents who might pass away in the near future is not to provide care for their serious health condition and doesn't constitute reasonable notice to the employer that the leave was for any CFRA-qualifying reason. The court stated that an employer is not required to be clairvoyant.9
In addition, an employee's own actions may relieve you of the obligation to offer family and medical leave. For example, if an employee specifically indicates that the employee does not wish to take a leave of absence but intends to resign, you are not responsible for offering family medical leave, reserving the employee's job or reinstating the employee when the need for the absence is over.
The Absence Request form is optional and based on company policy.
1. 29 CFR sec. 825.300(a)
2. 2 CCR sec. 11096(c)
3. 29 CFR sec. 825.300(a)
4. 2 CCR sec. 11096(a)
5. 2 CCR sec. 11096(b)
6. 2 CCR sec. 11091(a)(6)
7. 29 CFR sec. 825.300
8. Bareno v. San Diego Community College Dist, 7 Cal.App.5th 546 (2017)
9. Stevens v. California Department of Corrections, 107 Cal. App.4th 285 (2003)