An Employee’s Medical Note Indicating Hospitalization May Invoke Legal Protection Under CFRA to a Company’s Excessive Absence Policy


September 08, 2008
Qualified employers with 50 or more employees frequently work with eligible employees requesting leave under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to gather the appropriate information to make a determination if the leave request involves a serious health condition. The vast majority of these determinations are made based on information provided with an employee’s affirmative request for FMLA/CFRA leave. However, sometimes employers are placed in situations where an employee does not affirmatively request FMLA/CFRA leave, but the circumstances surrounding the employee’s leave of absence can put an employer on notice of the need for such leave. The California Court of Appeal recently examined what circumstances can invoke an employer’s notice of a qualifying leave of absence for a serious health condition under the CFRA in the absence of an affirmative request for such leave. Avila v. Continental Airlines, Inc. (Case No. B196603, August 11, 2008).

The crux of the case involved whether a medical note presented to an employer indicating an employee’s hospitalization following multiple day absences is sufficient to put the employer on notice of a qualifying serious health condition under the CFRA. The Court ruled that such notice could sufficiently put an employer on notice of a serious health condition under the CFRA. Although the federal FMLA is not referenced in this case, it generally parallels the CFRA with a few limited exceptions. Below is a review of the Avila case, along with some information on what employers should look out for in making a determination of whether an employee’s actions may invoke protections under FMLA/CFRA.

Factual Background in Avila.

Henry Avila began working for Continental Airlines’ food catering division, Chelsea, in 1998. Chelsea’s attendance policy stated that an employee would be terminated if he or she had seven or more recordable absences in any rolling 12-month period. Approved family medical leaves of absence (FMLA/CFRA) were not considered to be recordable incidents. If an employee was out for an illness and provided a doctor’s note verifying the illness, the absence would only be considered as one recordable absence even if the employee was out for multiple days.

In December 2004, Avila missed four days of work and was hospitalized for part of this time for acute pancreatitis. Avila had called in sick during the time period he was absent, but he never provided any information to indicate the reason for his illness. When he returned to work, he provided two medical forms from Kaiser Permanente Hospital to an unnamed supervisor on duty. One note indicated that he had been treated at the hospital on December 15, 2004 for an injury or illness. The other note established that he had been hospitalized from December 16-19, 2004 and could not return to work until December 21, 2004. Although Avila told numerous co-workers of his hospitalization for acute pancreatitis, he never provided these details to his supervisors or company management.

Because the medical notes appeared to involve two separate incidents of illness, Chelsea charged him with two recordable absences, which gave him a total number of six absences in the previous 12-month period under their attendance policy. In January 2005, Avila incurred another recordable absence, which brought him to the seven absence limit within a 12-month period under the attendance policy. In accordance with the policy, Avila’s supervisors terminated him for excessive absences. After being terminated from his employment, Avila indicated to Chelsea management for the first time that the December 2004 absences were related to his hospitalization for pancreatitis. Avila appealed his termination internally and the company’s appeal board upheld the termination.

As a result of his termination of employment, Avila sued Chelsea and Continental Airlines for disability discrimination and failure to reasonably accommodate his disability in violation of the Fair Employment and Housing Act (FEHA), wrongful termination in retaliation for Avila’s exercise of his rights under the CFRA, and wrongful termination in violation of public policy. The trial court granted summary judgment in favor of Chelsea/Continental on all causes of action. Avila appealed the trial court’s decision.

The Court of Appeal Holds That Hospital Notes Cannot Establish a Disability under FEHA, but May Establish a Serious Health Condition Under CFRA.

In reviewing the case, the Court agreed with the trial court that Avila could not establish he was disabled or that Chelsea/Continental failed to reasonably accommodate his disability under FEHA. The Court noted that an employee who calls in sick or merely brings in a note indicating that he was hospitalized cannot sufficiently establish that he is disabled because such actions do not provide enough information to make such a determination under FEHA. As a result, the Court noted that Chelsea/Continental could not be liable for failing to reasonably accommodate Avila’s disability where there is no evidence to indicate that the Company was aware of Avila being disabled in the first place.

However, the Court reversed the trial court’s ruling that Avila could not establish that the termination of his employment was in retaliation for asserting protected rights under CFRA. In reviewing this issue, the Court first noted that a plaintiff must show the following elements to establish a CFRA retaliation claim:

(1) The defendant was an employer covered by the CFRA,

(2) The plaintiff was an employee eligible to take CFRA leave,

(3) The plaintiff exercised his right to take leave for a qualifying CFRA purpose, and

(4) The plaintiff suffered an adverse employment action because of his exercise of his right to CFRA leave.

The key issues in this case involved whether Avila was eligible to take CFRA leave and, if so, whether he exercised his right to take CFRA leave.

An employee is eligible for CFRA leave, among other reasons, if he or she is suffering from a serious health condition defined as any illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital. Because Avila was hospitalized for pancreatitis, this would qualify as a serious health condition.

With Avila’s serious health condition confirmed, the next element involved whether Avila provided sufficient information to request a CFRA leave of absence and put the employer on notice of his serious health condition. Chelsea/Continental argued that, because Avila never affirmatively requested a CFRA leave or notified them of his serious health condition, he failed to exercise his right to take CFRA leave.

In reviewing this issue, the Court first noted that the CFRA regulations are rather broad in putting an employer on notice of a CFRA qualifying event. As noted in CFRA’s regulations:

An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should 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." - 2 Cal.Code of Regulations § 7297.4(a)(1) (emphasis added).

Following this, the Court agreed with Chelsea/Continental that Avila’s actions in calling in sick were not sufficient enough to establish a serious health condition. However, the fact that Avila brought hospital notes indicating he had been hospitalized could indicate that he had a serious health condition during the days he was absent. As a result, the Court held there was a triable issue of material fact as to whether these notes constituted a request for CFRA leave.

Even if Avila had provided valid notice of a CFRA leave, Chelsea/Continental argued that there still was no evidence Avila’s supervisors were personally aware of his protected conduct or status. As a result, Chelsea/Continental argued that Avila’s termination could not have been ‘because of’ Avila’s exercise of his right to CFRA leave. The Court rejected that argument and noted that, unlike FEHA, the CFRA’s ‘because of’ language only requires proof of a causal connection between the employee’s protected status or conduct and the adverse employment action taken by the employer in order to establish unlawful retaliation. It is not necessary to show that a particular management employee subjectively knew an employee’s absences were protected under CFRA to establish a causal connection between an employee’s CFRA leave and an adverse employment action taken ‘because of’ the absences. The Court ruled that retaliation in violation of CFRA could be established under these circumstances even though the Chelsea/Continental management that made the decision to terminate Avila was unaware of his potential CFRA absences.

As a result, the Court reversed the trial court’s decision to grant summary judgment on the CFRA retaliation and wrongful termination in violation of public policy claims and remanded the case to the trial court to proceed with these remaining claims.

Conclusion - Employers Should Proactively Certify FMLA/CFRA Leave Where an Employee’s Absences Appear to Establish a Serious Health Condition, Regardless of Whether the Employee Affirmatively Requests FMLA/CFRA Leave.

The lesson to learn from the Avila case is that FMLA/CFRA covered employers need to be proactive and vigilant when reviewing employee absences that may indicate a serious health condition under the FMLA/CFRA. This is especially true even where the employee does not affirmatively request FMLA/CFRA leave. FMLA and CFRA place the power to certify such a leave solely in the hands of employers. When employees provide medical notes or information indicating that a medical emergency has occurred or that they are being hospitalized, employers should either proactively inquire if a serious health condition is involved or immediately move to certify the leave as a FMLA/CFRA leave.

This proactive approach can assist employers in two important ways:

(1) To avoid a situation of FMLA/CFRA retaliation as noted above in Avila where proper leave protections were not provided and an adverse employment action occurs; and

(2) To ensure that FMLA/CFRA leave is properly designated and certified for all qualifying serious health condition events to avoid an employee’s ability to take extended leaves of absence because certain absences were not certified as FMLA/CFRA leaves.

In taking these steps, employers put themselves in a better position to avoid liability under FMLA/CFRA for failing to provide protected leaves of absence.

This article was written by Gage C. Dungy, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Dungy (gdungy@lcwlegal.com) is an Associate in the Fresno office and can be reached at (559) 256-7800. For more information regarding the discussion above or on our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.

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