Family and medical leave requests

Pitfalls and reminders

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When an employee requests significant time off for health reasons, most employers are aware of their obligations to consider family and medical leave requirements. However, short term leave requests paid out via accrued vacation or sick leave can fly under the radar. Employers are cautioned to remember that even short-term requests for 1-2 weeks off for health reasons qualify for potential FMLA or CFRA leave. If an employee brings such a request, even if it is otherwise paid for by accrued paid time off, employers are obligated to provide a Notice of Eligibility and Rights and Responsibilities within 5 business days of the request – even if the employee does not qualify for FMLA/CFRA leave.

If the leave does qualify for FMLA/CFRA leave, the employer must designate the leave as such. One common pitfall is failing to designate the leave as both FMLA and CFRA running concurrently (if the qualifying reason so allows). This failure can result in the employee seeking up to 24 weeks of leave - 12 under FMLA and 12 under CFRA. If the employer uses a form designation notice that is outdated or which does not properly include language as to both FMLA and CFRA leaves, it can inadvertently expose the employer to liability.

Please contact experienced counsel to ensure you are using appropriate forms and responding to leave requests correctly. Further, counsel can help you insert language into your written policies regarding leaves running concurrently in order to provide greater protection in this area.