Question:  I read that the Department of Labor revised forms for employers to use when an employee takes FMLA leave.  I am always confused by the FMLA forms and how they differ from California’s Department of Fair Employment and Housing forms for CFRA leave. Which forms should employers use?

Answer:  The short answer is that employers should use the following Department of Labor (“DOL”) revised forms relating to the federal Family and Medical Leave Act (“FMLA”):

  • General Notice;

  • Eligibility Notice;

  • Notice of Rights and Responsibilities; and

  • Designation Notice.

See https://www.dol.gov/agencies/whd/fmla/forms for links to the new forms.

California employers should not use the DOL’s new medical certification forms because the DOL certification forms ask the healthcare provider to identify the medical condition giving rise to the need for leave.  California employers must remember that California has strict medical privacy laws that prohibit an employer from obtaining a patient’s medical diagnosis when obtaining a medical certification.  Instead, California employers should use the Department of Fair Employment and Housing (“DFEH”) FMLA/CFRA certification form that complies with California’s privacy laws and conspicuously indicates that the health care provider must not disclose the underlying diagnosis without the consent of the patient.  The DFEH medical certification form can be found here:

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/12/CFRA-Certification-Health-Care-Provider_ENG.pdf

The federal FMLA and the California Family Rights Act (“CFRA”) apply to private sector employers of 50 or more employees, and public agencies regardless of the number of employees. Both the FMLA and CFRA provide up to 12 weeks unpaid leave to qualified employees who need leave due to their own or a family member’s serious health condition, or to bond with a newborn or child placed with the employee for adoption or foster care.  FMLA also provides leave associated with military service.    In many instances, leave under the FMLA and CFRA is available for the same reasons or conditions.  When an employee seeks leave under the FMLA and/or CFRA, employers must provide the employee a Notice of Eligibility and Rights and Responsibilities explaining the employee’s leave and benefits rights.  The employer may also request certification from a health care provider verifying the serious medical condition giving rise to the employee’s request for FMLA/CFRA leave as applicable.

The revised DOL forms have a checkbox format to aid employees, employers, and health care providers in completing and processing leave requests.  The revised forms also allow for electronic signatures and provide explanations and definitions regarding FMLA rights and obligations, including employee rights, responsibilities, and concurrent leave.  The forms contain a section allowing the employer to indicate the need for additional information to determine if the employee is eligible for leave and when that information is due.

Use of the revised DOL forms remains optional.  However, using the DOL’s new Eligibility Notice, Notice of Rights and Responsibilities, and Designation Notice will simplify the employer’s process and ensure necessary information is communicated to the employee.  Using the DFEH’s medical certification form will also assist California employers.  Remember that California employers may not directly contact an employee’s health care provider without the employee’s consent, which should be in writing.

The interaction of the FMLA and CFRA poses challenges to California employers, and creates risk if these laws are not followed.  Employers cannot interfere with eligible employees’ rights to take FMLA or CFRA leave, or discriminate against employees for taking leave.