Key Differences: CFRA & FMLA

We have received several questions around the differences between the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA), and we wanted to share some best practices for employers with California employees on medical leaves of absence covered under the CFRA.

Given the interest in this issue, we asked Cepideh Roufougar of Jackson Lewis to expand on this topic and provide more information about the unique CFRA considerations and general absence management strategies.

Before we dive into Cepideh’s recommendations, it is worth stating that employers may have unique operational and risk considerations that drive absence management practices and approaches. As a reminder, DMEC does not provide legal advice and members should consult legal counsel before making significant strategic leave decisions.

Overview

As we know, the CFRA differs from the federal FMLA in important ways that require handling CFRA leave requests differently than FMLA requests.

Some of the basic differences between the two leave laws are:

The California Confidentiality of Medical Information Act significantly restricts an employer’s right to seek medical information from employees. In addition, unlike nearly all other states, California’s state constitution, including its privacy protections, apply to private sector employers. Collectively, these protections dramatically shape California absence and leave management practices.

For these reasons, we generally recommend California employers use special California forms, and adopt California-centric leave practices, to avoid inadvertently requesting a medical diagnosis or other medical information prohibited under California law.

The CFRA also provides less flexibility to California employers in requesting recertifications.  FMLA regulations provide that employers may request recertification leave every 30 days unless an exception applies. One exception is if the minimum duration of the employee’s condition is more than 30 days, then the employer is required to wait to request recertification until that minimum duration expires. But even this exception has an exception, as the FMLA states, “[i]n all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee.” (29 CFR 825.308(b).)

In contrast, CFRA regulations provide for recertification “upon expiration of the time period the health care originally estimated the employee needed for the employee’s own serious health condition” and “only if additional leave is requested.”  (2 CCR 11091(b)(2).)  There is no language in the CFRA regulations that provides for periodic recertification.

Given the FMLA and CFRA differences, we think it is prudent for California employers to avoid monthly check-ins with employees on extended CFRA leaves. California law is silent on the issue of periodic check-ins with employees. But, in light of California’s emphasis on protecting privacy and limiting questions about an employee’s request for leave and health condition(s), employers should consider whether California employees can reasonably claim that periodic check-ins, no matter how well-intentioned, could cause the employee to feel pressured to return to work or to reveal confidential medical information.

While Employees Are on CFRA Leave

Although we generally recommend minimizing contact with California employee on CFRA leaves to reduce the risk of compliance exposures, employers should still take thoughtful and measured steps to ensure employees feel cared for during CFRA leaves. There are ways to accomplish this that pose less risk than calling employees during CFRA leaves.

For example, employers may choose to notify employees when a leave begins that, upon request, they are open to exploring reasonable accommodations or other steps that may eliminate or reduce their need for leave. In such communications, employers can explain they will refrain from contacting employees to respect the employee’s privacy and avoid disturbing them during leave. In those communications, employers can also invite employees to request periodic contacts during leaves and to contact the employer if the employee’s circumstances change, and the employee will need more or less leave than originally anticipated. Thereafter, if desired, employers can send written updates to employees during leave reiterating those points, as well as other “reminders” of employee notice obligations during leave.

Significantly, these approaches also facilitate compliance with an employer’s reasonable accommodation obligations under the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA). FEHA regulations specifically discuss an employer’s obligations to consider “extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan” if such an extension is “likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.” (2 CCR 11068(c).) By embedding written notice of the willingness to consider reasonable accommodations in leave-related notices, employers set the stage for this more pointed reasonable accommodation dialogue shortly before the anticipated expiration of their CFRA leave.

We know navigating leave can be a challenge, and especially so in California. We hope you find the above explanation helpful in your CFRA compliance program.