A recent California Court of Appeal case emphasized the need for employers to inquire further whenever an employee requests a medical leave that may qualify as "protected leave" pursuant to the California Family Rights Act ("CFRA").
On August 11, 2008, a California Court of Appeal issued its opinion in the case of Avila v. Continental Airlines, Inc. Plaintiff Henry Avila worked for a subsidiary of Continental Airlines. The employer had a so-called "no fault absence policy," which provided that an employee would be terminated if he or she had seven or more "recordable absences" in a rolling twelve month period. However, absences due to protected leaves such as those qualifying under the CFRA did not count as "recordable absences." Avila was hospitalized for acute pancreatitis. Upon his return, Avila provided two medical forms from the hospital that simply stated he had been hospitalized. He also claimed to have told about "50 persons" that he had been sick. However, he did not tell his supervisors. Avila exceeded the allowable number of "recordable absences" and Continental terminated his employment. Avila sued claiming that Continental both discriminated against him based on a disability and retaliated against him for taking leave protected pursuant to the CFRA. The trial court granted Continental's Motion for Summary Judgment as to all of Avila's allegations. Avila appealed the trial court's orders.
The Court of Appeal first addressed Avila's claim that his termination constituted unlawful disability discrimination. The Court held that Avila failed to provide evidence establishing that the people who made the decision to terminate him knew that he had a disability. Indeed, the medical forms Avila provided to Continental simply stated that he was unable to work due to an unspecified condition and was hospitalized. This was not sufficient to put Continental on notice that he suffered from a qualifying disability because he may have had elective surgery or sought preventative treatment for a condition that was not disabling. Moreover, although Avila testified he told a number of his "close friends" he was sick, he did not testify that he told any of his managers he was sick nor did he provide evidence the decision-makers knew of his illness. Because Continental's decision-makers had no knowledge that Plaintiff had a qualifying disability, they could not have acted with "discriminatory intent." Therefore, the Court of Appeal held that the trial court properly dismissed Plaintiff's disability discrimination claim.
The Court of Appeal next examined Avila's allegation that Continental unlawfully retaliated against him for taking CFRA protected leave. In general, the CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee’s request to take up to 12 “workweeks” in any 12-month period for family care and medical leave. (Cal. Govt. Code § 12945.2(a)). “Family care and medical leave” includes “[l]eave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee.” (Id. at subd. (c)(3)(C).) A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) Inpatient care in a hospital, hospice, or residential health care facility; (B) Continuing treatment or continuing supervision by a health care provider.” (Id. at subd. (c)(8); Cal. Code Regs., tit. 2, § 7297.0, subd. (o).)
Significantly, an employee need not request that a leave be counted as protected leave under either the CFRA or the federal Family and Medical Leave Act. Rather, "the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment." It is the employer's responsibility to "inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.” (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1).) Simply put, if the employer does not have sufficient information to determine whether an employee's leave qualifies as CFRA protected leave, it is the employer who bears the burden of making the appropriate inquiries and determining whether the leave is protected.
In this case, the Court of Appeal held that the hospital forms may have constituted a valid request for CFRA qualifying leave and, consequently, it reversed the trial court's dismissal of Avila's CFRA retaliation claim. This case emphasizes the fact that employers cannot merely wait for an employee to specifically request CFRA or FMLA protected leave. Employers must instead inquire further whenever an employee provides notice of a leave that may possibly qualify as protected.