Employee and Employer Requirements

Employer and Employee Requirements

Notice Requirements for Employer and Employee. State and federal laws create specific posting and notice obligations for employers to explain employees’ family and medical leave rights. Employers may require employees to provide advance notice before FMLA/CFRA leaves begin.

Employer Requirements. Employers have both posting and notice obligations. You must post general family and medical leave notices in a conspicuous place where applicants and employees tend to congregate. There are two separate general notices; one for the federal FMLA and one for the state CFRA. Both describe employees’ rights to leave under these laws. The FMLA authorizes electronic posting of its information. If you are a covered employer under the FMLA, the notice must still be posted even if you do not have any eligible employees. The current Federal Family and Medical Leave Act Poster – Notice C bears a revision date of February 2013.

FMLA regulations require employers to provide all notices relating to FMLA leave in the language in which a significant portion of the workforce is literate.1 California law states that if the workforce at any facility or establishment contains 10 percent or more of people who speak a language other than English as their primary language, you must translate the posters and notices for those employees.

Notice of Eligibility and Rights and Responsibilities. When an employee requests FMLA/CFRA leave or when you learn that an employee’s leave may be for a FMLA/CFRA qualifying reason, you must notify the employee of his or her eligibility to take FMLA/CFRA leave and of their rights and responsibilities within five business days, absent extenuating circumstances. The Notice of Eligibility and Rights and Responsibilities must state whether the employee is eligible for leave. If the employee is not eligible for FMLA/CFRA leave, the notice must state at least one reason why. For example, the notice may inform the employee that he or she is ineligible because the employee worked less than 1,250 hours in the preceding 12 months. Certification of a qualifying exigency must be specified in the notice, along with the consequences for failing to provide the required certification. The notice must also detail the specific expectations and obligations of the employee and explain consequences for not meeting those expectations and obligations. The notice must include, when appropriate:

That the leave may be counted against the employee’s 12-week entitlement
The employee’s right to substitute paid leave, whether the employer requires substitution of paid leave, and any conditions related to substitution
Requirements for certification of need for leave and consequences for failure to obtain certification
Whether the employer will require the employee to make premium payments for health benefit coverage, the arrangements for doing so, and the consequences for failing to do so
Whether the employee will be required to provide certification for his or her ability to return to work at the end of the leave
The employee’s right to reinstatement at the end of leave
Whether the employee is deemed a “key employee” who may be denied reinstatement, including an explanation of the conditions for such denial
The notice can also include additional information, such as whether the employer will require periodic reports of the employee’s status and intent to return to work.

Designation of Leave. The employer must also designate leave as FMLA qualifying and provide notice of designation.

Distribution of Notice and Employee Handbook Requirements. The state and federal notices should be distributed to new and current employees and also incorporated into employee handbooks. Under federal law, the information is required to be incorporated into an employee handbook or other written guidance to employees concerning employee benefits or leave rights. If such written materials do not exist, the notice should be distributed at the time of hire. The employer can either simply hand out a duplicate of the federal notice or use a similar format as long as it contains all of the information in the federal notice. The FMLA authorizes electronic posting of this information. Under California law, if you publish an employee handbook that describes other kinds of personal or disability leaves available to your employees, you must include a description of family and medical leave in the next edition of your handbook. Make sure you include the method that you use for calculating leave eligibility in your employee handbook. You may include both PDL and family and medical leave requirements in a single notice.
The state regulations also provide that employers are encouraged to:

Give a copy of the California notice to each current and new employee
Ensure that copies are otherwise available to each current and new employee
Disseminate the notice in any other way

Employee Requirements. You can require that employees provide at least 30 days’ advance notice before family and medical leave begins if the need for the leave is anticipated (the expected birth of a child or planned medical treatment). The employee must consult with you and make a reasonable effort to schedule any planned medical treatment or supervision to minimize disruption of company operations (subject to the health care provider’s approval.

If it is unknown when leave is required to begin, a change in circumstances happens or a medical emergency exists and it is not possible for the employee to give 30 days’ notice, the employee must give notice as soon as is feasible. You cannot deny leave for an emergency or unforeseeable family circumstances because the employee did not provide advance notice of the need for the leave.

In the case of FMLA leave for a qualifying exigency, the employee must give notice of the need for such leave as soon as possible and practical, regardless of how far in advance the leave is needed. California regulations require an employee to provide at least verbal notice requesting a CFRA-qualifying leave and the leave’s anticipated timing and duration. An employee need not explicitly claim rights under, or even mention, CFRA or FMLA. However, the employee must communicate that the leave is needed for a protected reason to meet the notice requirement.

You must communicate what type of advance notice you require of your employees. Include the notice requirements in your employee handbook’s general family leave notice. If you fail to give or post this notice, you cannot take any adverse action against the employee, including denying family leave for failing to give advance notice of a family leave need.

An employee requested a one-week vacation to spend Christmas with his parents in Michigan, commenting on his parents’ deteriorating health and his concern that their death might be near. The employer denied the request because no open vacation slots existed for that week. The employee sued, alleging that the employer violated the CFRA by denying his request for family leave. The court said the request to spend the Christmas holiday with parents who might pass away in the near future is not to provide care for their serious health condition. The court stated that an employer is not required to be clairvoyant.

An employee may by his own actions relieve you of the obligation to offer FMLA leave. If an employee specifically indicates that he/she does not wish to take a leave of absence but intends to resign, you are not responsible for offering family medical leave, reserving the employee’s job or reinstating the employee when the need for the absence is over.