Cal. Code Regs. tit. 2 § 11091

Current through Register 2024 Notice Reg. No. 14, April 5, 2024

Section 11091 - Requests for CFRA Leave: Advance Notice; Certification; Employer Response

(a) Advance Notice.

(1) Verbal Notice.

Unless an employer waives its employees' notice obligations described herein, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. 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.

(A) Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee.

(B) Employers may not retroactively designate leave as CFRA leave after the employee has returned to work, except with appropriate notice to the employee and where the employer's failure to timely designate does not cause harm or injury to the employee.

(2) 30 Days' Advance Notice.

An employer may require that employees provide at least 30 days' advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member. The employee shall consult with the employer and make a reasonable effort to schedule any planned medical treatment or supervision so as to minimize disruption to the operations of the employer. Any such scheduling, however, shall be subject to the approval of the health care provider of the employee or the employee's child, parent or spouse.

(3) When 30 Days Not Practicable.

If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.

(4) Prohibition against Denial of Leave in Emergency or Unforeseeable Circumstances.

An employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave, so long as the employee provided notice to the employer as soon as practicable.

(5) Employer Obligation to Inform Employees of Notice Requirement.

An employer shall give its employees reasonable advance notice of any notice requirements that it adopts. The employer may incorporate its notice requirements in the general notice requirements in section 11095 and such incorporation shall constitute reasonable advance notice. Failure of the employer to give or post such notice shall preclude the employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave.

(6) Employer Response to Leave Request.

The employer shall respond to the leave request as soon as practicable and in any event no later than five business days after receiving the employee's request. The employer shall attempt to respond to the leave request before the date the leave is due to begin. Once given, approval shall be deemed retroactive to the date of the first day of the leave.

(b) Medical Certification.

(1) Serious Health Condition of an Employee's Family Member

As a condition of granting a leave for the serious health condition of the employee's family member, the employer may require certification of the serious health condition, as defined in section 11087(a)(1). If the certification satisfies the requirements of section 11087(a)(1), the employer must accept it as sufficient. Upon expiration of the time period the health care provider originally estimated the employee needed to take care of the employee's family member, the employer may require the employee to obtain recertification, but only if additional leave is requested. The employer may not contact a health care provider for any reason other than to authenticate a medical certification.

(2) Serious Health Condition of Employee.

As a condition of granting a leave for the serious health condition of the employee, the employer may require certification of the serious health condition, as defined in section 11087(a)(2). Upon expiration of the time period the health care provider originally estimated the employee needed for the employee's own serious health condition, the employer may require the employee to obtain recertification, but only if additional leave is requested. The employer may not contact a health care provider for any reason other than to authenticate a medical certification.

(A) If the employer has a good faith, objective reason to doubt the validity of the certification the employee provides for the employee's own serious health condition, the employer may require, at the employer's own expense, the employee to obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information in the certification. The health care provider designated or approved by the employer shall not be employed on a regular basis by the employer.

1. The employer may not ask the employee to provide additional information (e.g. symptoms, diagnosis, etc.) in the medical certification beyond that allowed by these regulations.

2. The employer is responsible for complying with all applicable law regarding the confidentiality of any medical information received.

(B) In any case in which the second opinion described in (b)(2)(A) differs from the opinion in the original certification, the employer may require, at the employer's expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by both the employer and the employee, concerning any information in the certification.

(C) The opinion of the third health care provider concerning the information in the certification shall be considered to be final and shall be binding on the employer and the employee.

(D) The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, without cost, upon the request of the employee.

(E) As a condition of an employee's return from medical leave, the employer may require the employee to obtain a release to return-to-work from the employee's health care provider stating that the employee is able to resume work, but only if the employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after illness, injury or disability and there is no collective bargaining agreement forbidding the practice. An employer is not entitled to a release to return-to-work for each absence taken on an intermittent or reduced leave schedule. However, an employer is entitled to a release to return-to-work for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform the employee's duties.

(F) An employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee's return. After an employee returns from CFRA leave, any fitness-for-duty examination must be job-related and consistent with business necessity, in accordance with section 11071 of these regulations.

(3) Providing Certification.

The employer may require that the employee provide any certification within no less than 15 calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification. Absent extenuating circumstances (e.g., unavailability of healthcare provider), if the employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. The same rules apply to recertification. If the employee never produces the certification or recertification, the leave is not CFRA leave. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of the employee's failure to provide adequate certification.

Cal. Code Regs. Tit. 2, § 11091

1. Change without regulatory effect renumbering former section 7297.4 to new section 11091 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section and NOTE filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10).
3. Amendment of section heading, section and NOTE filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section heading, section and NOTE filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations; effective 1-1-2021 (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Editorial correction of HISTORY 4 (Register 2021, No. 3).
6. Change without regulatory effect amending subsections (a)(1)(B)-(a)(2) filed 1-21-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 4).
7. Editorial correction of section heading and HISTORY 4 (Register 2021, No. 51).

Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945.2, Government Code; White v. County of Los Angeles (2014) 225 Cal.App.4th 690; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, 2611, 2612 and 2614; and 29 C.F.R. § 825.

1. Change without regulatory effect renumbering former section 7297.4 to new section 11091 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section and Note filed 3-4-2015; operative 7/1/2015 (Register 2015, No. 10).
3. Amendment of section heading, section and Note filed 7-6-2020; operative 10/1/2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section heading, section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Change without regulatory effect amending subsections (a)(1)(B)-(a)(2) filed 1-21-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 4).