Employees Have ‘Reasonable’ Time to Request Family, Sick Leave, Court Says

The California Family Rights Act doesn’t define how employees should ask for unexpected leave

By Joanne Deschenaux, J.D. Feb 2, 2017

​A community college employee who claimed she was terminated from her job because she took medical leave is entitled to a trial on her California Family Rights Act (CFRA) retaliation claim, a California appellate court ruled. The appellate court reversed the trial court's order to dismiss the claim, saying the lower court erred in concluding that the employee failed to give adequate notice of her need for the time off.

Leticia Bareno worked as an administrative assistant for San Diego Community College. In early 2013, the college suspended Bareno for three days without pay due to performance issues. The suspension was to run from Feb. 20-22.

Early in the morning of Feb. 25—what would have been Bareno's first day back at work—she called Dean Lynne Ornelas, her supervisor, saying that she would not be in because she needed to seek medical attention. Bareno indicated that she was sick, depressed, stressed and had to go to the hospital. Later that evening, Bareno e-mailed Ornelas to say that she would be out on medical leave through March 1. On that date, Bareno sent Ornelas a copy of a form from her doctor stating that she required leave from work for a medical reason from March 1 to March 8.

Bareno did not appear for work for the week of March 4. On March 8, the college's human resources office sent Bareno a letter via certified mail to inform her that her unauthorized absences constituted a voluntary resignation, effective March 11. The following day, March 9, Bareno e-mailed Ornelas another report from her doctor that authorized her leave from work for the period between March 8 and March 15. The report identified Feb. 25 as the date of onset of the condition for which Bareno required continued leave from work. In this e-mail, Bareno also informed Ornelas that she intended to return to work on April 8.

On March 13, Bareno again e-mailed Ornelas medical leave notices from her doctor for the period between March 8 and March 15, as well as a college form used to request a formal leave of absence.

The college, however, concluded that Bareno's request for leave was not sufficient and informed her that she had "voluntarily resigned" from her position.

Bareno filed suit against the college, alleging that in effectively terminating her employment, it had retaliated against her for taking medical leave, in violation of the CFRA. The trial court granted summary judgment, dismissing Bareno's claims without a trial, and she appealed.

[SHRM members-only policy: California CFRA/FMLA Leave Policy]

Under CFRA, an employer of 50 or more workers cannot refuse to grant an employee's request to take up to 12 workweeks in any 12-month period for family care and medical leave. Violations of CFRA generally fall into two types of claims:

  • Interference claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave.
  • Retaliation claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.

The trial court dismissed Bareno's retaliation claim because it believed she had not properly notified the college that she was taking medical leave.

The appellate court noted that CFRA does not define what constitutes a valid request for CFRA leave. It states that if an employee's need for a leave is foreseeable, the employee must give the employer "reasonable advance notice" of the need for the leave. However, the statute and regulations don't give instructions on how an employee may request leave under CFRA when the reason for the leave is sudden and unexpected.

The court stated that, "when viewed as a whole, it is clear that CFRA and its implementing regulations envision a scheme in which employees are provided reasonable time within which to request leave for a qualifying purpose, and to provide the supporting certification to demonstrate that the requested leave was, in fact, for a qualifying purpose, particularly when the need for leave is not foreseeable or when circumstances have changed subsequent to an initial request for leave." The question of whether notice to the college of the need for leave is sufficient under CFRA is a question of fact.

According to the appellate court, based on all of the evidence, a reasonable fact-finder could conclude that Bareno's attempts to contact the college about her need for leave for a CFRA-qualifying purpose were reasonable and that she therefore sufficiently requested CFRA leave for the entire period during which she was absent in early 2013. Therefore, the court ruled, the trial court erred in dismissing the claim without a trial.

Bareno v. San Diego Community College District, Calif. Ct. App., No. D069381 (Jan. 13, 2017).

Professional Pointer: An employer should examine all of the surrounding circumstances in determining whether a request for CFRA leave is reasonable. If the leave was not foreseeable, has the employee made a good-faith effort to contact the employer as soon as possible? If so, it is likely that the leave request will satisfy the statute.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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