California“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.

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Photo of Cepideh Roufougar Cepideh Roufougar

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus…

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus on identifying practical solutions to help ensure compliance with state and federal law. Ms. Roufougar positions herself as a strategic partner when providing advice and counsel about litigation avoidance, employee management issues, implementing disciplinary actions, and collective bargaining issues. Her ability to see the big picture clearly and understand her client’s businesses in emotionally charged and highly complex disputes has helped her clients financially and prevented litigation. Her clients rely on her to guide them through both short-term and long-term planning to achieve their unique goals and strategies.

Ms. Roufougar is an experienced trainer and presents seminars on a wide range of subjects, including: leave management and reasonable accommodations; preventing discrimination, harassment and retaliation; implementing and sustaining disciplinary actions; conducting defensible workplace investigations; first-line supervisor trainings; performance management/evaluations; and wage and hour issues.

Ms. Roufougar has been successful in helping her clients prevail in numerous arbitrations and administrative appeals. She has extensive experience representing employers in labor and employment disputes. She has defended employers in employment litigation matters, including claims alleging violations of the Public Safety Officers Procedural Bill of Rights Act, FLSA collective actions, and claims of harassment and discrimination. Ms. Roufougar also conducts complex workplace investigations.

Before joining Jackson Lewis, Ms. Roufougar practiced at a well-regarded local labor and employment firm and served as in-house counsel for a local public agency.

Photo of Sheri L. Giger Sheri L. Giger

Sheri Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Her practice focuses on leave management issues including process reviews, paid sick leave, and compliance, as well…

Sheri Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Her practice focuses on leave management issues including process reviews, paid sick leave, and compliance, as well as preventative human resource policy development, training and counseling and advice. Additionally, she works on policy/handbook development, particularly for multi-state issues.

Learn more about Ms. Giger on the Jackson Lewis website.