“What did I do wrong” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Employers with operations in California need to worry about both the FMLA and the California Family Rights Act (CFRA).  This is the next in our monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration for California employees.

Not Using a CFRA Compliant Certification Form

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. Often times, as part of this initial notification process, the employer may ask for additional information to ensure that the reason for leave is FMLA-qualifying.  In those instances, many employers will require that the employee submit a completed “Certification of Health Care Provider” form.

California employers should not use the “Certification of Health Care Provider” forms prepared by the U.S. Department of Labor (WH-380-E or WH-380-F) without amendment. The regulations implementing the CFRA prohibit employers from using a certification that requires the disclosure of the underlying diagnosis without consent of the patient.  As a result, asking question 4 on the DOL WH-380-E runs afoul of the CFRA regulations.  Employers with California operations are encouraged to either:  (1) remove any questions from medical certification forms that ask for medical facts, such as an employee’s diagnosis or details about the regimen of continuing treatment; or (2) use Fair Employment & Housing Council Certification of Health Care Provider form which can be found in the CFRA regulations.