What should I do if an employee requests leave for family and medical reasons?

In some circumstances, an employee may request leave for family and medical reasons. The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) entitle eligible employees to unpaid, job protected leave under defined circumstances. If you employ five or more employees, you are covered by the CFRA. If you employ 50 or more employees, you are covered by the FMLA.

The CFRA and the FMLA both provide a maximum of 12 weeks of leave in a 12-month period for an employee’s own serious health condition; caring for a family member with a serious health condition; bonding with a newborn, adopted or foster care child; and leave due to a qualifying exigency relating to the covered active duty or call to covered active duty status of an employee’s family member serving in the U.S. Armed Forces.

The CFRA covers the following family members: spouses and domestic partners, children, parents, parents-in-law, grandparents, grandchildren, siblings, and “designated persons.” A “designated person” is an individual “related by blood or whose association with the employee is the equivalent of a family relationship” and whom the employee designates at the time the employee requests leave. Employers may limit an employee to one designated person per 12-month period. The FMLA is not as expansive as CFRA, only providing leave to take care for a parent, spouse or child.

The FMLA also provides 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin for a covered military servicemember who requires care. See “Military Caregiver Leave.” 

1. Employee Requests Leave

An employee informs you either verbally or in writing that they need leave. The employee does not have to specifically ask for “CFRA leave” or “FMLA leave” to be eligible for the leave but needs to provide enough information that you become aware that the request may be covered by CFRA or the FMLA, such as informing you that he needs time off after the birth of his child.

In general, you can require that employees give you 30 days’ advance notice before the leave begins if the reason for the leave is anticipated (for example, the expected birth of a child or a planned medical treatment).

2. Determine Eligibility for Leave

Determine whether the employee meets eligibility requirements. An employee is eligible for family and medical leave if they:

• Works for a covered employer.
• Worked for the employer for at least 1,250 hours in the 12 months preceding the start of the leave.
• Worked for that employer for at least 12 months, although the time need not be consecutive.
• For FMLA only, works at a worksite where the employer employs 50 or more employees either at the worksite or within 75 miles of the worksite.

For a complete discussion, see Family and Medical Leave Eligibility Requirements.

3. Notify Employee of Rights and Eligibility

Both the CFRA and the FMLA require employers to provide employees with notice of their rights under the laws. CFRA regulations require employers to respond to an employee’s request for leave within five days. 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 Employee) form.

If you are covered by the FMLA, the FMLA requires you to notify the employee of their eligibility to take FMLA leave and of their rights and responsibilities within five business days of the employee’s request, absent extenuating circumstances. 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.

• 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 - Notice of Eligibility and Rights and Responsibilities
• FMLA - Notice of Eligibility and Rights and Responsibilities - Spanish

4. Request Medical Certification (Optional and Based on Company Policy)

You can require the employee to provide medical certification, unless the leave is for child bonding purposes. You must give the employee at least 15 calendar days after your request for such certification. You may require a second opinion of the employee’s illness, but you must pay for it.

• If the employee takes leave for their own serious health condition or the serious health condition of a family member, use the Certification of Health Care Provider – Employee’s or Family Member’s Serious Health Condition form.
• If the employee takes pregnancy disability leave running concurrently with leave under FMLA, use the Certification of Health Care Provider for Pregnancy Disability Leave, Transfer or Reasonable Accommodation form.
• If the employee requests leave under the FMLA to care for a covered servicemember, the employee will need a different certification depending on whether the request is for a current servicemember or for a veteran:
  • Certification for Serious Injury or Illness of a Current Servicemember - for Military Family Leave (Family and Medical Leave Act)
  • Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave - (Family and Medical Leave Act)
• Finally, if the employee is seeking FMLA and/or CFRA leave due to a qualifying exigency relating to a military member’s covered active duty or call to covered active duty status, use the Certification of Qualifying Exigency for Military Family Leave.

• Certification of Health Care Provider – Employee’s or Family Member’s Serious Health Condition
• Certification of Health Care Provider – Employee’s or Family Member’s Serious Health Condition - Spanish
• Certification of Health Care Provider for Pregnancy Disability Leave, Transfer or Reasonable Accommodation
• Certification for Serious Injury or Illness of a Current Servicemember - for Military Family Leave (Family and Medical Leave Act)
• Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave - (Family and Medical Leave Act)
• Certification of Qualifying Exigency for Military Family Leave

5. Designate Leave

You are responsible for designating the leave as family or medical 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).

You must provide notice of the designation to the employee. If you do not believe you have sufficient information to evaluate the request, notify the employee and request additional information. If you deny the request for leave, FMLA regulations require you to state at least one reason why.

If you are covered only by the CFRA, use the CFRA Notice and Designation (Five to 49 Employees) form to designate leave under the CFRA. You can also use this form to inform the employee that you need additional information to evaluate the leave request.

If you are also covered by the FMLA, you can use the CFRA Notice and CFRA/FMLA Designation (50 or More Employees) form to designate leave as CFRA only, FMLA only or CFRA/FMLA running concurrently. You can also use this form to request additional information to evaluate the leave request.

• 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

6. Reinstate Employee

You must reinstate the employee to his or her position either by an agreed-upon date, or within two days of the employee’s notification of readiness to return. Only under very limited circumstances can you refuse to honor the guarantee of reinstatement. Consult with legal counsel before refusing to reinstate.

You can require a medical release to allow the employee to return to work (except for child bonding leaves) if you also require releases for other disability leaves. You should inform the employee of this requirement when you notify the employee of their rights and responsibilities under the FMLA/CFRA.