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What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

“What did I do wrong” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Employers with operations in California need to worry about both the FMLA and the California Family Rights Act (CFRA).  This is the next in our monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration for California employees.

Not Using a CFRA Compliant Certification Form

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. Often times, as part of this initial notification process, the employer may ask for additional information to ensure that the reason for leave is FMLA-qualifying.  In those instances, many employers will require that the employee submit a completed “Certification of Health Care Provider” form.

California employers should not use the “Certification of Health Care Provider” forms prepared by the U.S. Department of Labor (WH-380-E or WH-380-F) without amendment. The regulations implementing the CFRA prohibit employers from using a certification that requires the disclosure of the underlying diagnosis without consent of the patient.  As a result, asking question 4 on the DOL WH-380-E runs afoul of the CFRA regulations.  Employers with California operations are encouraged to either:  (1) remove any questions from medical certification forms that ask for medical facts, such as an employee’s diagnosis or details about the regimen of continuing treatment; or (2) use Fair Employment & Housing Council Certification of Health Care Provider form which can be found in the CFRA regulations.

Part 1 - Common Family Medical Leave Act Mistakes: What Am I Doing Wrong??

Part 2 - Employee Leave Notice: Common Family Medical Leave Act Mistakes, Pt 2

Part 3 - FMLA Equivalent Position: What Am I Doing Wrong? Common FMLA Mistakes

Part 4 - Counting FMLA-Protected Absences: What Am I Doing Wrong?? Common FMLA Mistakes

Part 5 - What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

Part 6 - What Am I Doing Wrong?? Common FMLA Mistakes

Part 7 - Common FMLA Mistakes: In Loco Parentis Relationships: What Am I Doing Wrong??

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 67


About this Author

Cepideh Roufougar, Employment Attorney, Jackson Lewis Law Firm

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

She focuses on public and private sector management in all areas of labor and employment law. Ms. Roufougar positions herself as a strategic partner when providing advice and counsel about litigation avoidance, employee management issues, implementing disciplinary actions, collective bargaining issues, and the California Public Safety Officers and Firefighters Procedural Bill of Rights Acts. Her ability to see the big picture clearly and understand her client’s...

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment, Americans with Disabilities Act, Family and Medical Leave Act, wage and hour, hiring and interviewing, background checks, and preventative workplace practices. She also defends charges of discrimination before federal and state agencies.