FMLA certification Q&A for California employers
FMLA certification and other aspects of FMLA leaves can be frustrating and time-consuming. But it is in the employer’s best interest to get it right the first time to avoid giving more time off than is required. To complicate things further, California employers have to handle the California Family Rights Act (CFRA) and understand how it differs from the FMLA. In a recent CER webinar, Michelle Barrett lent her expertise on this matter and answered participant questions. Here is a recap of the Q&A session.
Q. I have an employee who suffers from migraines. We have a doctor’s note stating he cannot be near loud equipment when he is suffering. The employee is calling in every second Monday stating he has a migraine. Can I designate this as FMLA leave?
A. Typically, yes. What you need to be sure of is, obviously, that the employee has provided the necessary certification to specify that this is a serious health condition. Typically it is since there is a regimen of ongoing treatment or care by a doctor. Assuming that this employee is calling in explaining that the absences are due to the migraines, you should be able to designate that as FMLA leave.
Q. When it comes to FMLA and CFRA medical certifications, how much information is sufficient? For example, if the sections outlining the date the condition began, the anticipated duration of the condition, and the explanation that the employee cannot perform the essential functions of the position are complete, is this sufficient (even if all of the other responses are left blank)?
A. Unfortunately, in California that is sufficient.
Q. Does a one-day emergency room visit for a chronic illness come under FMLA, or would it be considered a sick day?
A. It would depend on if the employee has provided certification that they need time off due to the chronic condition. If they provide a necessary certification outlining the need for absences, and then they go into the emergency room for that condition, that would certainly qualify for FMLA. If you’re aware of a chronic condition but they’ve not asked for FMLA leave, and it’s only one absence, chances are it’s really just a sick day.
Q. Do FMLA and CFRA run concurrently?
A. Typically they do. There can be some exceptions, however. For example, pregnancies are not considered to be serious health conditions under CFRA. As such, when you have a woman who is disabled by pregnancy, she will have time off under the FMLA as well as California’s Pregnancy Disability Leave law. However, the CFRA will not be running concurrently with that leave.
If, after the baby is born, the mother would like to take time to bond with the baby, she would still have CFRA leave left available for this, even if she’s already exhausted her FMLA leave. This is an example of when they wouldn’t run concurrently. However, if you’re just dealing with an employee’s serious health condition (or a family member’s serious health condition), those do run concurrently. There are other circumstances where CFRA or FMLA may apply, but not both.
Q. What if an employee has been out of the country but needs FMLA leave upon return and brings completed medical certifications in different languages? Is that acceptable?
A. I would say that this would be a prime example of a case where you would be able to get clarification or verification of the documents. Under FMLA you do have to accept certifications from doctors outside of the United States, so that alone wouldn’t be a basis for denying the leave. However, if you can’t read it or you’re unable to authenticate or clarify what it says, that might be a basis for denying the leave.
I would probably proceed very carefully in that circumstance. Perhaps see if you can find someone to translate the information in the document if you cannot get clarification from the doctor.
Q. What is the timeframe to give employees to return an updated certification (recertification)? Another 15 days?
A. Yes, the recertification has the same 15-calendar-day time period.
Q. Would it be acceptable if the doctor’s note states that the employee may return to work with no restrictions? Is this an acceptable form of a “fitness-for-duty” release?
A. If the doctor says the employee is released to return without restriction, that is fine. What you want to stay away from in wording (if you have your own fit-for-duty certification) is statements like “the employee must be released to full duty” or “the employee must be able to perform all essential functions of the job.”
The risk with statements like these is that they could be viewed as prohibiting someone with a disability from returning to work. This could result in a claim that you failed to provide reasonable accommodation for that employee. Likewise under FMLA, the idea is to get them back to work, even with restrictions.
Q. If we are a California employer but we have employees in multiple states, should we be following federal FMLA rules only in those states?
A. In all states you must follow FMLA requirements, and you also must follow any state requirements – California is not the only one with its own FMLA (or equivalent) statute.
The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Make Sound Decisions When Designating Absences.” To register for a future webinar, visit CER webinars.
Michelle R. Barrett is the co-chair of the Leaves of Absence and Disability Accommodation Practice Group at Littler Mendelson PC. She advises, represents, and trains management clients in various areas of employment and labor law.