Are your employees being dishonest about their medical leave? Here is what you should do….

Question:

Brittany is the HR Manager and has reason to believe that one of her employees is not being truthful about her need to be on leave. The medical leave request does not seem valid. She wants to verify the diagnosis but the CFRA/FMLA regulations in CA protect employee’s confidentiality. Brittany wants to know under what circumstances can an employer in California request a medical diagnosis, a list of symptoms, or similar information from the employee’s physician?

Answer:

According to the California Family Rights Act (CFRA), an employer can request a medical certificate confirming the employee has a serious health condition that requires leave. However, an employer may not ask the employee to provide additional information beyond what is needed to make a determination as to whether the request for leave qualifies under CFRA/FMLA. The CFRA medical certificate may not require an employee’s medical diagnosis to be disclosed.

An employee is considered to have provided sufficient information to make a determination under the CFRA if he or she has provided the employer with the following information:

• The date, if known, on which the serious health condition began.
• The probable duration of the condition.
• A statement that due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his or her position.

If you suspect fraud and abuse, you should be “curing” that medical certificate for both the employee or the employee’s family member. This is an effective way to gain confidence and clarification in the medical information provided.

Remember you can not obtain 2^nd and 3^rd opinions for an employee’s family member under CFRA. This makes the curing process especially significant!

Additionally, when CFRA/FMLA has been exhausted for the employee’s own medical condition, you are obligated to engage in the Interactive Process if the employee needs additional leave or an accommodation of any kind. During the Interactive Process, you specifically verify how the employee’s “disability” affects their “ability” to perform the “essential job functions.”

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Leave Management Solutions also has all the forms, checklist, flowcharts, directions and resources you need to respond to and designate CFRA leave (and ADA/FEAH and PDL with or without workers’ compensation) in your organization.  We have been working with FMLA and ADA for over 27 years and provide expert testimony in this area.  By HR for HR, let us be the experts so you dont have to. We will also be conducting a deep dive 3 – 1/2 day training, March 3-5, to specifically review simple, step by step strategies for implementing the new CFRA, specifically if you are a small employer and have never been challenged with this compliance requirement before.

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