Consequences of Forgetting Family and Medical Leave Paperwork

CFRA, or the California Family Rights Act, covers employers with 5 or more employees and provides eligible employees with up to 12 weeks of unpaid, job-protected “family and medical leave” (with continued health insurance). CFRA can be used for the serious health condition of the employee or their family member, bonding with a new child, or a family member’s military service.

When you learn that an employee may need time off for any of these reasons, one important responsibility is to provide the employee with certain mandatory paperwork. Not doing the paperwork, or not doing the paperwork on time, can have some real consequences.

Let’s consider an example:

Employer ABC Corp. has 10 employees. John has been a full-time employee for 2 years and tells ABC he wants to take 12 weeks off work beginning April 1 to bond with his newborn.

What should ABC do?

John’s request seems to fall under CFRA (bonding with a new child), so ABC must respond to John’s request within 5 business days. This includes:

• Notifying John whether he is eligible for CFRA and about his CFRA rights. John is eligible if he worked for ABC for at least 12 months and worked at least 1250 hours in the past 12 months.
• “Designating” the leave as CFRA leave if applicable. This means notifying John in writing that his leave is approved and that 12 weeks off will be counted against his CFRA entitlement.

If ABC takes these steps (and continues John’s health insurance, if applicable) when John returns to work he will have exhausted his 12-week CFRA leave entitlement.

What if ABC doesn’t designate John’s leave as CFRA leave?

If ABC doesn’t complete the required paperwork, the short answer is that, once John returns to work, ABC may not be able to count the time John was off on bonding leave against his 12-week CFRA entitlement. Under CFRA’s regulations, an employer may not retroactively designate leave as CFRA leave once an employee returns to work, except with appropriate notice to the employee and where the employer’s failure to timely designate did not cause the employee “harm or injury,” meaning there is no negative consequence to John. 

What is an example of a negative consequence to the employee?

Say John comes back to work on July 1 after 12 weeks of bonding leave, and ABC never designated the time as CFRA. John later tells ABC that his parent is having planned surgery in mid-August. He will need 4 weeks off work to care for them. Even though he just got back from 12 weeks of bonding leave, John can still probably take 4 weeks of CFRA leave to care for his parent. This is because ABC never provided John with adequate designation that the bonding leave counted against his CFRA entitlement. Had John been properly informed, he may have chosen to plan his bonding leave differently, perhaps taking less bonding time or taking time off the following January when the baby is crawling. This means ABC’s failure to timely and properly designate John’s bonding leave will likely be viewed as causing John “harm or injury,” restricting ABC from retroactively designating the leave after John’s return to work.

CFRA, and its federal counterpart, FMLA (which applies to employers of 50 or more employees), are highly technical laws. This example is one of many factual situations where not having a written Family and Medical Leave policy and/or not knowing how to recognize and administer Family and Medical Leave can create unexpected problems.

Need additional information or assistance? Visit our Forms and Toolkits page for several Leave of Absence fact sheets and our Leaves of Absence Toolkit to walk you through the process. You can contact us with questions by phone, email, or LiveChat.