An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

3. D OES A N E MPLOYEE H AVE T O S PECIFICALLY R EQUEST FMLA/CFRA L EAVE ? The FMLA regulations provide that an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA. 1217 An employer cannot assert as a defense to denying leave that the employee’s failure to mention that he or she needs FMLA leave precludes such leave. Thus, employers should put employees on notice that the leave they are taking runs against FMLA leave if they are informed by the employee that the leave would qualify under the FMLA. This same provision is set forth under the CFRA. 1218 But, when an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave. 1219 Although employers are required to ascertain whether an employee is requesting FMLA leave, an employee has the right not to use FMLA leave for care of a family member. 1220 If an employee decides not to exercise his/her rights under the FMLA, however, the employer should confirm the employee’s decision in writing. 4. O VERLAP O F T HE T WO A CTS The CFRA regulations do not specifically include a provision (such as provided by the FMLA regulations) which permits a school to deny foreseeable leave, if an employee fails to comply with the 30 day notice requirement without a reasonable excuse. However, since the CFRA regulations require at least 30 days’ notice, a school may deny an employee from taking protected leave if the notice is untimely. Such denial would not be permitted if 30-day notice is not practicable or if leave is not foreseeable. H. I S A N E MPLOYEE R EQUIRED T O P ROVIDE M EDICAL C ERTIFICATION T O S UPPORT A R EQUEST F OR L EAVE ? 1. FMLA Schools may require employees who request FMLA leave to provide written certification from the health care provider of the individual requiring care. This includes medical certification for the employee or the family member. If FMLA leave is requested because of the employee’s own serious health condition, the certification must include a statement that the employee is unable to perform the essential functions of the employee’s position. 1221 If the leave is requested to care for a family member, the medical certification must specify that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member. 1222

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