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Protections under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) are strict. Be careful that you are not responding negatively to an employee’s request for leave to avoid chilling the exercise of employee rights and violating the CFRA and the FMLA.
The CFRA and the FMLA provide that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the statutes. (29 Code of Federal Regulations, Section 825.220(a)(1); 2 California Code of Regulations, Section 11094(a)).
Most important, in accordance with CFRA regulations and U.S. Department of Labor Fact Sheet No. 77B, an employee’s CFRA/FMLA rights can be violated even if a requested leave is not denied, but the employer discouraged the leave.
“Discouragement” can take many forms. It often occurs when the employee first requests leave, and the management’s response is impulsive and negative.
Even if the leave ultimately is approved, the first reaction of the employer may be used as evidence of interference if issues with the leave arise later.
It is crucial that employers properly train their managers and supervisors about the strong protections provided to employees under the CFRA and the FMLA. Those who field leave requests must understand that CFRA/FMLA rights are basically non-negotiable, and that they cannot discourage an employee’s exercise of leave rights.
Employers must make it clear that stray comments like “you should be more visible in the office,” “we really need you to work during the time you want to take off” or “you are being inconsiderate of your coworkers” may discourage employees from taking leave.
Read more about Family and Medical Leave Designation in the HR Library.