A few of our employees call in sick on a semi-regular basis with legitimate but unpredictable health issues relating to conditions like epilepsy and asthma. Is this time off covered by FMLA/CFRA? The employees can’t give us much advance notice because their symptoms come on so suddenly. —Anonymous
Many employers struggle with whether absences due to unplanned illness are covered under the federal Family Medical Leave Act (FMLA) and the corresponding California Family Rights Act (CFRA). Both the FMLA and the CFRA entitle an eligible employee to take medical leave due to, among other things, his or her own serious health condition that makes him or her unable to perform the essential functions of his or her position. Federal regulations define a “serious health condition” as an illness, injury or impairment, or physical or mental condition that involves inpatient care (i.e., an overnight stay), or continuing treatment by a health care provider.
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The “continuing treatment” category is generally limited to illnesses that create a period of incapacity of more than three consecutive calendar days. However, the regulations also permit FMLA leave for episodic illness involving any period of incapacity—or treatment for such incapacity—when triggered by “a chronic serious health condition.” This includes conditions like asthma, diabetes, and epilepsy, which require periodic visits for treatment by a health care provider, continue over an extended period of time, and may cause episodic rather than continuing periods of incapacity. “Periodic visits” is currently undefined, but the DOL has proposed a requirement of at least two doctor visits per year.
The FMLA permits employees to take leave on an intermittent basis, or to work a reduced schedule, when medically necessary because of the employee’s serious health condition. Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less.
FMLA regulations also require employees to provide timely and adequate notice to their employers of the need to take leave. In situations like the ones you describe, where the need for leave is unforeseeable, the employee is to give notice “as soon as practicable.” What is “practicable,” both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. Under the current regulations, employees can generally take off for up to two days before requesting leave. The DOL recently addressed employer concerns over unplanned leave without notice with a proposed change (not yet in effect) generally requiring employees to call in and request a leave before taking it.
When giving notice, the employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The critical question is whether the information provided to the employer is sufficient to reasonably make the employer aware that the employee needs FMLA-qualifying leave. The employer is then expected to obtain any additional required information necessary to determine whether the employee suffers from a serious health condition. Merely reporting that one will be out sick may be insufficient notice. However, in order to effectuate the FMLA’s stated purpose—protecting employees with serious health conditions in a manner that accommodates the legitimate interests of employers—courts will consider all the facts and circumstances surrounding an employee’s request for time off.
The FMLA regulations permit and encourage an employer to request “certification” issued by a medical or health care provider to substantiate the employee’s need for leave due to a serious health condition. If the employer has reason to doubt the validity of the certification provided—for example, if an employee has a pattern of Friday/Monday absences, the employer may either seek additional information from the employee’s health care provider (this requires employee permission) or require that the employee obtain a second opinion from another health care provider (at the employer’s expense). Conflicting opinions are resolved by obtaining a third medical opinion in accordance with FMLA regulations.
Consistent with today’s complex employment environment, the FMLA is an intricate statute—one that frequently presents challenges in its application. The solutions to these challenges lie with employers that continue (or begin) to proactively manage all employee leaves of absence. A good place to start would be to require, as a matter of company policy, medical certification for all requests for FMLA leave due to an employee’s serious health condition. Prudent employers should gather pertinent information, but should be careful not to overreach by intruding into the employee’s medical privacy.
Sandra Rappaport, Esq., is a partner at the San Francisco office of the law firm Hanson Bridgett LLP. Whitney Clark, who helped prepare this answer, is a summer associate at the same firm.