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You can automatically apply FMLA/CFRA leave with notice

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in Employment Law,FMLA Guidelines,Human Resources

Employees who need to take time off for serious health conditions can use both federal FMLA leave and California Family Rights Act (CFRA) leave, plus other paid leave for the absences.

But employers can require employees to use their available FMLA and CFRA leaves for any eligible condition, even if the employees are off on other paid leave. That way, employees aren’t eligible for more time off after they have exhausted other leave entitlements.

The trick is to tell employees you are running the leaves concurrently. Include language on the leave form specifying that you automatically designate as FMLA/CFRA leave any absence longer than three working days that qualifies for the FMLA/CFRA.

Recent case: Brian Wilson worked for Sunsweet Growers as a forklift operator. He told his employer he needed time off because he injured his back. But Wilson’s doctors made a mistake on the certification form, listing a return date a month earlier than intended. When Wilson didn’t show, Sunsweet fired him under its no-show attendance policy.

Wilson sued, alleging he still was eligible for either FMLA or CFRA leave because the company never notified him he was using up his leave. Plus, he said his discharge was retaliation for taking FMLA leave, and that he should have been rehired after his doctor cleared up the return date.

That’s when the company pulled out the leave forms Wilson had filled out. The forms clearly stated that the company automatically designated absences for FMLA/CFRA-qualifying conditions that lasted longer than three working days as FMLA/CFRA leave. That was enough notice to comply with the regulations. (Wilson v. Sunsweet Growers, Inc., No. CV-06-0401, ED CA, 2007)

Final note: Sunsweet isn’t in the clear just yet, though. The judge said Wilson should get a trial on whether his use of FMLA leave was a negative factor in the decision not to rehire him.

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