This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#5 – Failing To Treat A Request For Leave As Protected

When an employee needs medical leave, he should provide notice sufficient to make the employer aware that he needs the leave, as well as the anticipated timing and duration of the leave. (Cal. Code Regs., tit. 2, § 11091.) However, the employee need not use any legal terms or buzzwords to request medical leave. As the California Family Rights Act (“CFRA”) regulations confirm:

The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The mere mention of “vacation,” other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information). An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially CFRA-qualifying. Failure to respond to permissible employer inquiries regarding the leave request may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying.

(Cal. Code Regs., tit. 2, § 11091.)

Oftentimes, even when employers know that the employee needs time off for a CFRA/FMLA- or ADA/FEHA-qualifying reason, they may claim that the employee did not make the desire for protected leave explicit, or that the employee only expressed an interest in using PTO or vacation time to take time off. In Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 248-49, the court rejected the argument that because Moore testified that she had not intended to use a protected leave for her surgery, she had not exercised her right to take CFRA leave. The Court held that “the relevant question . . . is not whether a plaintiff expressly requested CFRA leave, but rather whether she ‘exercised her right to take leave’ and whether the purpose for the leave sought was a ‘qualifying CFRA purpose.’”

Thus, the employer cannot stick their head in the sand and claim they did not know that leave requested for covered reason is protected.

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To read about the next way that employers deny employees their leave rights, click here: #6 – Instituting A Maximum Leave Policy.

This series was adapted from Ramit Mizrahi’s article in The Advocate Magazine, “Ten Ways That Employers Deny Employees Their Medical Leave Rights (June 2017).

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