In this case, the Court of Appeals ruled that an it is an employers duty to determine whether or not an employee’s absence can qualify him/her for protected leave under CFRA/FMLA.
Henry Avila worked for a subsidiary of Continental Airlines when he suffered from an attack of pancreatitis and was hospitalized for several days. Upon his return, he provided several notes to his employer that solely indicated he had been hospitalized without giving a reason for the hospitalization.
He [Avila] also claimed to have told about “50 persons” that he had been sick. However, he did not tell his supervisors. Avila exceeded the allowable number of “recordable absences” and Continental terminated his employment. Avila sued claiming that Continental both discriminated against him based on a disability and retaliated against him for taking leave protected pursuant to the CFRA. The trial court granted Continental’s Motion for Summary Judgment as to all of Avila’s allegations. Avila appealed the trial court’s orders.
Continental claimed that they had no notice as to Mr. Avila’s need for protected leave as he did not provide detailed information nor did he contact a manager to inform the employer of his need for protected leave. The Court thought otherwise.
From Shaw Valenza:
However, the court held that Continental was on sufficient notice that the employee needed CFRA leave. Avila’s merely calling in sick was not sufficient notice..Yet, the court held (2-1) that the employee’s claim that he gave the Kaiser doctor’s notes to an unidentified manager was sufficient to create a triable issue of fact that he sufficiently requested a CFRA leave.
From the Court Decision:
Under CFRA and its implementing regulations, the employer bears the burden to determine whether an employee’s leave is protected—that is, to “inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought . . .” (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)), and ultimately “to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying . . . .” (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)(A).) Once an employee has submitted a request for leave under CFRA, the employer is charged with knowledge that the employee’s absences pursuant to the leave request are protected, and may not thereafter take adverse employment action against the employee based upon—that is, “because of”—those protected absences. (§12945.2, subd. (l)(1); Cal. Code Regs., tit. 2, § 7297.7
In other words, an employee need not make a specific request for protected leave as it is the responsibility of employer to inquire further to determine whether or not CFRA/FMLA applies.
Ain’t that always the case?