On January 13, the California Court of Appeal issued a decision in favor of an employee of San Diego Miramar College who was released for “job abandonment” while out on medical leave. The court reversed the trial court’s judgment in favor of the College, holding a reasonable fact-finder could conclude the College retaliated against the employee for taking medical leave protected under the California Family Rights Act (“CFRA”). (Bareno v. San Diego Community College District (1/13/17) 2017 WL 128143.)
After serving a three-day unpaid suspension for excessive absenteeism, Letitia Bareno gave her supervisor verification from her Kaiser doctor, indicating she needed leave from work from February 25 through March 1, 2013 for medical treatment. On March 1, Bareno emailed the College vice president about her intent to appeal the three-day suspension, and informed him that she was out on medical leave and would notify the College of her return. That same day, Bareno used a UPS Store’s email system to send her supervisor a new medical verification on a Kaiser form, indicating she needed leave from work for a medical reason through March 8, 2013.
The supervisor claimed she did not receive Bareno’s March 1 email with the medical verification. Bareno did not report to work for the week of March 4 through 8. On March 4, the supervisor contacted the College’s human resources department and was told that five consecutive days of unauthorized absences would constitute job abandonment under the collective bargaining agreement (“CBA”).
On March 8, the Vice Chancellor of Human Resources informed Bareno in a letter that her unauthorized absences constituted a voluntary resignation. The next day, Bareno emailed her supervisor another medical verification from Kaiser, extending her leave through March 15. Bareno emailed the medical verification to her supervisor again on March 13.
On March 18, 2013, Bareno faxed her supervisor the College’s form for requesting a formal leave of absence. That day, after undergoing medical treatment in Riverside, Bareno returned home to San Diego where she finally received the College’s March 8 correspondence, informing her that the College considered her to have voluntarily resigned. Bareno immediately called Human Resources, and was allegedly told they could not talk to her because she was no longer an employee.
Bareno sued, alleging she was terminated and retaliated against for taking medical leave, in violation of the CFRA. The trial court granted the College’s motion for summary judgment. The Court of Appeal overturned that decision, holding a reasonable fact-finder could conclude the College decided to interpret Bareno’s absences as “voluntary resignation” despite evidence to the contrary, in retaliation for Bareno taking medical leave.
The Court of Appeal held the evidence, when viewed in the light most favorable to Bareno, demonstrated that she gave the College sufficient notice of her need for CFRA-protected leave. The CFRA permits an employer to require employees to provide medical certification of the need for leave within “no less than 15 calendar days of the employer’s request for such certification, unless it is not practicable for the employee to do so despite the employee’s good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification.” (Cal. Code Regs., tit. 2, § 11091, emphasis added.)
A reasonable fact-finder could conclude the College failed to meet its obligation under CFRA to inquire with the employee if it needed additional information regarding her leave request. Likewise, the evidence demonstrated the College did not attempt to inform Bareno that it had no medical verification for the week of March 4-8, 2013, but waited until the end of the week to send her a letter about her voluntary resignation.
The court noted the lack of evidence showing Bareno had any intention of voluntarily resigning. Even if the College initially understood Bareno to be absent without justification, it later became aware, through her communications, that she was out for medical reasons. The court held a reasonable fact-finder could conclude the College presumed Bareno voluntarily resigned under the CBA provision in retaliation for taking protected medical leave and despite evidence to the contrary.
This case bluntly illustrates the importance of employers meeting their obligations under CFRA. When CFRA-eligible employees are absent for medical reasons (even if the initial verification is insufficient, or the physician repeatedly extends the leave), the employer must give the employee a reasonable amount of time (up to 15 days) to provide proper verification. When the verification for a qualifying absence is inadequate or incomplete, the employer has a duty to inquire further. If there is any reason to believe an employee is absent for CFRA-protected medical reasons, the employer should not assume the employee has resigned.