SECTION 4: REPORTING AND NOTIFICATION RESPONSIBILITIES
Employee's Responsibility:
When leave is foreseeable (e.g. expected date of birth or planned medical treatment), the employee must provide management at least 30 days advance notice before FMLA and/or CFRA leave is to begin. If 30 days notice is not possible, due to lack of knowledge or an emergency, notice must be given as soon as possible absent extenuating circumstances.
The employee may provide notice either in person or by telephone, telegraph, facsimile (fax) machine or other electronic means. Notice may be given by the employee's spokesperson (e.g. spouse, adult family member or other responsible party) in accordance with the employee's departmental call-in procedure if the employee is unable to do so personally.
The employee need not expressly assert rights under FMLA and/or
CFRA or even mention FMLA and/or CFRA. The mention of an FMLA and/or CFRA qualifying reason is considered sufficient notice. The employer should inquire further of the employee if it is necessary to have more information to determine whether the leave is FMLA and/or CFRA.
An employee must consult with his or her supervisor and make a reasonable effort to schedule the leave to not unduly disrupt the department's operation when planning intermittent leave for medical treatment for himself, herself or a family member. Employees are expected to consult with their supervisor prior to the scheduling of treatment in order to work out a schedule which best suits the needs of both the department and the employee. If an employee neglects to consult with the supervisor, the supervisor may initiate discussions with the employee and require the employee to attempt to make such arrangements.
It is management's responsibility to designate FMLA and/or CFRA leave. However, it is the employee's obligation to provide management with sufficient information to allow management to make the designation.
Employer's Responsibility
Management's determination of FMLA, CFRA or PDL must be based only on the information received from the employee or the employee's spokesperson in the event the employee is unable to communicate directly. If an employee requests to use vacation or other paid accrued time off without referencing the need for family leave, management must not ask whether the employee is taking time off for a family leave qualifying reason. However, if the employer denies the request and the employee then provides information that the requested time off is or may be for an FMLA and/or CFRA-qualifying reason, the employer may inquire further into the reasons for the absence.
EXAMPLE
Thomas requests two weeks of vacation but does not indicate he needs the time to care for his mother and to find her a suitable nursing home. Management is unaware of the reason and denies his request. Thomas complains and insists that management cannot deny his request under FMLA and/or CFRA. However, Thomas refuses to explain why he needs the vacation, thereby preventing management from having sufficient information to determine whether his request is FMLA and/or CFRA qualifying. In this case, until he provides sufficient information for a determination to be made, his request can be denied, which would be consistent with the department's vacation policy.
In the same example, management would be required to grant FMLA and/or CFRA (and allow the use of vacation) if Thomas had provided enough information for management to be aware that the leave could be FMLA and/or CFRA qualifying. The ultimate resolution of the leave schedule remains subject to the approval of the health care provider and schedule established for the planned medical treatment.
Designating Leave
In all cases, it is management's responsibility to designate leave. Once management learns that leave is being taken for a qualifying reason, the employee must be notified in writing within five (5) business days that the leave is being designated as FMLA, CFRA or PDL.
Management must provide the employee with the “Notice of Eligibility and Rights & Responsibilities” form and the “Certification of Health Care Provider” form and instruct the employee to complete and return it within 15 calendar days. The employee does not need to mention the need for FMLA and/or CFRA leave. If the employee mentions a condition/situation which may be FMLA and/or CFRA qualifying, it is management's responsibility to inquire further, without requesting a diagnosis, and designate the leave as FMLA and/or CFRA qualifying when applicable. Any questions regarding the proper designation should be discussed with the Departmental Human Resources Office.
Retroactive Designation
In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave. If the leave is not timely designated as FMLA, it may be retroactively designated as FMLA with appropriate notice to the employee provided that the employer's failure to timely designate leave did not cause harm or injury to the employee.
An employer's failure to timely designate FMLA may constitute interference with an employee's FMLA rights. In this circumstance, the employer may be liable for restoring any lost compensation, benefits or other monetary losses associated with the interference.
Management may not ask for a diagnosis with regard to a request for family leave. However, management may require employees on FMLA and/or CFRA leave to comply with the department's procedural requirement for requesting leave. For example, the department may require the completion of a written form for all types of leave requests. However, FMLA and/or CFRA leave cannot be denied or delayed because the employee does not request it in writing if a timely verbal or other form of notice was provided. Management also cannot impose notification requirements which exceed those in the FMLA and/or CFRA regulations.
EXAMPLE
Lisa's spouse calls in on her first day of leave and verbally requests time off for her, because she has been hospitalized. A certification of health care provider form is sent and returned within 15 days. The entire period of time after the department received verbal notification from Lisa's spouse will be designated as FMLA and/or CFRA leave.
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If the medical
certification fails to confirm that the reason |
Delay or Denial of FMLA/CFRA Leave
If the need for leave was clearly foreseeable to the employee, but the employee failed to give 30 days notice with no reasonable excuse, management may delay FMLA and/or CFRA leave until at least 30 days from the date of the employee's notice. Any action taken as a result of the employee's failure to give adequate notice must be consistent with the department's practices as it is applied to other types of leave. In addition, before denying or delaying FMLA and/or CFRA leave, management must show that:
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The employee had knowledge of the notification requirement (proper posting of an FMLA and CFRA poster at the employee's work site will satisfy this requirement)
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The employee had knowledge of the need for the leave in sufficient time and failed to give the notice to management.