In California, what are the certification requirements for employees who request FMLA/CFRA leave?

Although the California Family Rights Act (CFRA) is similar to the Family and Medical Leave Act (FMLA), some significant differences exist when it comes to what employers may require on a certification. Those differences are discussed below. 

Leave for an Employee's Own Serious Health Condition 

Whereas FMLA regulations do not prohibit an employer from asking for a specific diagnosis, CFRA regulations strictly prohibit an employer from asking for a medical diagnosis in medical certifications. However, an employee may voluntarily provide such information at his or her own discretion. The CFRA certification shall be sufficient if it includes all of the following:

• The date on which the serious health condition commenced.
• The probable duration of the condition.
• A statement that, due to the serious health condition, the employee is unable to perform the function of his or her position.

Leave for a Family Member's Serious Health Condition 

According to the California Government Code 12945.2, when leave is requested to care for a family member with a serious health condition, similar rules apply. An employer may require an employee to provide all of the following information:

• The date on which the serious health condition commenced.
• The probable duration of the condition.
• An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
• A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.

As with the FMLA, if the employer doubts the validity of the employee's medical certification provided for CFRA leave eligibility, the employer may require a second health care opinion, designated and paid for by the employer. The CFRA regulations indicate an employer must have a good-faith, objective reason to doubt the validity of the employee's medical certification. If the first and second opinions conflict, an employer may require and pay for a third opinion (with a provider mutually selected by the employer and the employee). The third opinion is final and binding.

Leave for a Birth, Adoption or Foster Care

The allowable certification requirements for CFRA leave are similar to those of the FMLA leave when leave is requested for the purpose of either the birth of a child or placement of a child with the employee for adoption or foster care. Leave to bond with a newborn child does not require medical necessity, and therefore, a medical certification is generally not required and regulations do not specifically require an employee to provide certification when asking for leave to adopt a child. However, nothing in the Act precludes an employer from requiring an employee to provide some type of certification when requesting leave for the birth or placement of a child with the employee for adoption or foster care. Typically, employers require a birth certificate or adoption papers. Some employers have devised a form to be completed and certified by the placement professional or agency.