It’s crucial for California employers to get the information needed to properly designate absences so that FMLA/CFRA leave can be administered legally. But proper administration isn’t always black and white. For example, if an employee’s doctor advises that he or she is under the care of specialists, can an employer require that the specialist complete the FMLA certification?
What about baby bonding time? Can an employee take it in pieces? What are the specifics?
Must an employer allow indefinite leave? Does the answer change if the employee is disabled?
These are just a few of the questions answered by Allen Kato at the conclusion of a recent CER webinar. Read on for the answers to these questions and more.
Q. I received a doctor’s note from a primary physician, stating that the employee cannot return to work as she is under the care of a neurosurgeon and pain manager. Should I request notice from the specialists? What if the neurosurgeon does not reply? Is the primary physician’s note sufficient?
A.As long as that primary physician is in fact the treating physician (and is one of the doctors that the employee is seeing), and if that individual has in fact properly completed the certification form, then you’re bound by that. You can’t go back and say that you need a certification from the specialist, specifically.
If you have doubts about the validity of the certification, you have the choice of getting a second opinion by an employer doctor. If that doctor does not see the need for FMLA leave, then a third opinion can be obtained by a doctor mutually selected by the employer doctor and the employee doctor. So, the short answer is: no, you should not be pushing back to get a certification from the specialist. You should be satisfied with the primary care physician’s certification, and if you’re not, then go the second and third opinion route.
Q. We have found that our employee is requesting baby bonding time, but wants to break it up into segments in order to get time off during the holidays. We are a law-enforcement agency, requiring employees on duty 24/7. We limit the number of employees who may have time off due to the need to provide services. And, per our contract, the leave is based on seniority.
A.With respect to the baby bonding, looking at CFRA obligations, the answer to that question is that yes, there is latitude to be able to manage the business within the confines of what the law allows. The employer is allowed to restrict the baby bonding time to increments of 2 weeks or more, except on 2 occasions. (In other words, it may be taken for a shorter time on 2 occasions, but the rest of the time it must be 2 weeks or more).
Additionally, the total allotment must be used within the first 12 months after birth. There needs to be reasonableness on both ends. Some methodology should be involved so that the employee can take their legally-allowed baby-bonding leave, while balancing the company’s staffing needs.
Q. I received a doctor’s note for an employee who has exhausted all leave available to her. The employee’s doctor’s note stated that the leave is indefinite. Is this allowable? Can we accept indefinite leave?
A.The short answer is that you do not have to accept an indefinite note like that. I would suggest that you push back and advise that indefinite time frame is not acceptable and require the employee to provide a doctor’s note that gives some defined estimate as to when they will be able to return to work. Then you will be able to go through the process of determining whether this is going to be approved leave or not.
In the question, it was stated that all leave has been exhausted. Assuming you’re covered by FEHA and/or federal ADA, there still may be an obligation to afford that individual time off – even after exhausting FMLA leave – as part of a reasonable accommodation for a disability. But that is going to be a function of whether that is reasonable. Is it reasonable to give the employee more time? Is it an undue hardship?
The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse.” To register for a future webinar, visit CER webinars.
For more answers from Kato on questions on employee leaves of absence in California, see our related article.
Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.
We know the technical definition of “undue hardship,” but how does it play out in reality? What types of conditions have been found to justify denial of leave based on undue hardship?