FMLA and CFRA leave requirements have a lot of overlap, but there are some important distinctions for employers to be aware of. Some of these can be found in the area of medical certifications required for the employee to take the leave. For example, did you know that a California employer should not use the most recent Department of Labor certification forms? Here are some other differences.
FMLA/CFRA leave certification forms
When an employee requests FMLA/CFRA leave, employers know to request medical certification that confirms the need for the leave. However, California employers need to be aware of the differences in the certification process outlined by CFRA versus the FMLA.
For example, for employee and family medical leaves in California, it’s okay to use the pre-2009 DOL form (WH-380).
“In 2009, the Department of Labor issued updated forms that pertain to the different types of leave under FMLA. But, under California, the California agency that was overseeing CFRA was the Fair Employment and Housing Commission. And they basically published a notice that says that it’s okay in California to use this old form.” Mary Topliff explained in a recent CER webinar.
“The reason that California likes this form and not the new forms is that the new forms ask for a lot of more specific information that at least potentially conflicts with the California confidentially of medical information act and in terms of medical privacy issues and so forth.”
Here is the information to be supplied on the CFRA leave certification:
- Verification that the employee has a “serious health condition.” This should include a description of the medical facts that support the certification, including a statement of how the medical facts meet the criteria for the serious health condition. In California, however, specific medical diagnoses should be omitted.
- Date the condition began and the expected duration of the condition.
- Notation of the medical need for intermittent or reduced schedule leave (if applicable).
FMLA/CFRA leave certification form completion issues
What happens if the medical certification is returned incomplete? There are actually some differences in the way the FMLA and CFRA treat medical certification issues.
FMLA/CFRA: Incomplete certification form
Under the FMLA, if the form is incomplete, the employer is to notify the employee in writing of the deficiency and provide an opportunity to cure it. The employer may contact the healthcare provider directly (with authorization from the employee) if the employee does not respond in a timely manner. If the employee does not authorize communication with his or her healthcare provider and also provides no clarification, then the employer can deny the leave request.
However, California employers need to be aware that under CFRA there is no information regarding an employer’s rights to get clarification.
“There’s nothing written in the regs about clarifying directly with the healthcare provider [or] what happens specifically if the employee doesn’t give you authorization to contact the healthcare provider.” Topliff told us. “Before you deny the leave under these circumstances, I would just say to check with your counsel to make sure that your counsel agrees that it’s okay to deny the leave under these circumstances. (It’s a little unclear how the courts in California might address this under CFRA).”
FMLA/CFRA: Questionable medical verification
What happens if you get the form back and it is questionable? If it is complete, usually no further information may be obtained. However, if there is a reason to doubt the validity of the certification (as to condition for which leave is requested), then the employer can require a second opinion at the employer’s expense.
“A reason to doubt the validity means . . . either the form itself appears to be fraudulent or forged.” Topliff explained. It might be something about the doctor or the form that appears fraudulent. Alternatively, the validity might be doubted “if you have independent, verifiable facts about the employee that are inconsistent with what the doctor is saying.”
Under the FMLA, the second opinion can be requested for either the employee’s serious health condition or a family member’s condition. CFRA, however, only addresses this for employee medical issues.
If you get a second opinion that conflicts with the original, then you have the option to have a third opinion – again at the employer’s expense – and this decision is binding. Getting the third opinion is optional, but if you don’t get it and go with the second opinion only, then you risk liability for not having a clear rationale for denying the leave (since the two opinions conflicted and one was chosen arbitrarily).
The above information is excerpted from the webinar “Intermittent Leave in California: FMLA/CFRA Calculation, Tracking and Authentication Strategies, and More.” To register for a future webinar, visit CER webinars.
Mary Topliff, Esq., founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.