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must be in the highest paid 10% of salaried employees working within 75
miles of the employer’s job location at the time of the leave request, and the
employer must be able to show that reinstating the employee would cause
“substantial and grievous economic injury to the operations of the employer.”
An employee must be given written notice at the time that the employee
requests FMLA/CFRA leave, or as soon as practicable thereafter, delivered
in person or by certified mail, of his or her “key employee” status and the
potential consequences to his or her reinstatement rights.
C. Posting, Notice and Record-Keeping
As with a number of other wage and employment-related statutes, employers must
post notices for employees in a conspicuous place explaining their rights under
the FMLA and CFRA. Posters are available on the websites for the Department
of Labor and the DFEH. In addition, an employer should design leave policies
that clearly explain their employees’ rights under the FMLA and CFRA, and all
notification and certification obligations. In addition, employers are obligated to
keep detailed records regarding the employees’ FMLA/CFRA leave, including
copies of all notices furnished to employees for at least three years.
III. Special FMLA/CFRA Issues Regarding Caring for Parents
A. Who Is a “Parent”?
Under the FMLA and CFRA, “parent” means a biological, foster, or adoptive
parent, a step parent, a legal guardian, or other person who stood
in loco
parentis
to the employee when the employee was a child. The term “parent,”
however, does not include an in-law.
B. What Does It Mean to “Care for” a Parent With a
“Serious Health Condition”?
To take FMLA/CFRA leave related to a parent’s health concern, an employee must
have a need “to care for” that family member’s “serious medical condition.”
a. What Is a “Serious Health Condition”?
A “serious health condition” is an illness, injury, impairment, or physical or
mental condition that involves: (A) inpatient care in a hospital, hospice, or
residential medical care facility; or (B) continuing treatment by a health
care provider. While the inpatient care element is relatively self-explanatory,
“continuing treatment” is more complicated. Under the FMLA, “continuing
treatment by a health care provider” means: (1) “a period of incapacity of more
than three consecutive, full calendar days, and any subsequent treatment
or period of incapacity relating to the same condition;” (2) “incapacity due
to pregnancy or for prenatal care;” (3) any period of incapacity or treatment
related to a chronic serious health condition which requires periodic visits and
continues over an extended period of time, or is episodic in nature; (4) any
period of incapacity that is permanent or long-term for which treatment may
not be effective, or (5) “any period of absence to receive multiple treatments”
for restorative surgery following an accident or injury, or for a condition that
is likely to lead to incapacity for three or more consecutive days unless there
is medical intervention. The CFRA regulations similarly define “impatient care”
as a stay in a hospital, hospice, or residential health care facility, and defines
“continuing treatment” simply as supervision by a health care provider (as
detailed in the FMLA regulations).
b. “Caring For”
In federal and state cases covering California law, courts hold that providing
care to a family member requires some actual care, or participation in the
ongoing treatment of the condition. In one California case, Pang v. Beverly
Hosp., Inc., 79 Cal. App. 4
th
986 (2000), the court held that the employee
was not protected under CFRA based on her request for leave to help her
ailing mother move to a one-level apartment to minimize the need for at-home
assistance. In another case, Marchisheck v. San Mateo County, 199 F.3d 1068,
1076 (9
th
Cir. 1999), a federal court found that traveling with a family member to
take him to stay with family in the Philippines did not constitute “care for” that
family member within the meaning of the FMLA.
Other cases have emphasized that to be eligible for leave to care for a family
member with a serious health condition, the employee, at a minimum, must be
in close and continuing proximity to the ill family member. For example, in Tellis
v. Alaska Airlines, Inc., 414 F.3d 1045 (9
th
Cir. 2005), the court ruled that the
employee did not “care for” his wife within the meaning of the FMLA when he
made a cross-country trip to retrieve the family vehicle and called his wife on
the phone during her late-stage pregnancy difficulties.
It is also important to note that the FMLA and CFRA cover care for a family
member involving situations encompassing both physical and/or psychological
care. For example, in Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1088
(9
th
Cir. 2002), the employee took FMLA leave to temporarily move in with
his father following the murder of the employee’s sister. The court found that
the leave was protected by the FMLA because the employee had provided
psychological care to his father, including talking with him daily, performing
household chores, and driving his father to counselor appointments. In Bell v.
Prefix, 321 Fed. Appx. 423 (6
th
Cir. 2009), a court held that an employee’s leave
to care for his hospitalized father was protected FMLA leave even though the
father was unconscious for a large duration of the leave. The court found that
the employee had provided psychological comfort and reassurance to his father
whenever possible, spoke with the doctors, and was responsible for authorizing
medical decisions.
c. Certifying the Need for Leave
Under both the FMLA and CFRA, employers may require medical certification
from the parent’s health care provider. This certification should contain: (1) the
date on which the serious health condition began; (2) the probable duration of
the condition; and (3) a statement that the serious health condition warrants
the participation of the employee to provide care during a period of treatment
or supervision of the parent (including providing psychological comfort,
arranging “third-party” care for the parent, or participating in or providing the
medical care).
While under the FMLA, an employer may also require the disclosure of the
parent’s specific health condition at issue, this may not be required under
the CFRA. Under the FMLA, an employer is also permitted to seek a second
medical opinion regarding the parent’s serious health condition, but no such
authorization is permitted under the CFRA. To avoid problems, we recommend
using a copy of the CFRA Certification of Health Care Provider, available online
on the California Department of Fair Employment and Housing web site.
