CACI No. 2602. Reasonable Notice by Employee of Need for CFRA Leave

Judicial Council of California Civil Jury Instructions (2023 edition)

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2602.Reasonable Notice by Employee of Need for CFRA Leave
For notice of the need for leave to be reasonable, [name of plaintiff] must
make [name of defendant] aware that [he/she/nonbinary pronoun] needs
[family care/medical] leave, when the leave will begin, and how long it is
expected to last. The notice can be verbal or in writing and does not
need to mention the law. An employer cannot require disclosure of any
medical diagnosis, but should ask for information necessary to decide
whether the employee is entitled to leave.
New September 2003; Revised May 2021
Sources and Authority
Reasonable Notice Required. Government Code section 12945.2(g).
Additional Requirements. Government Code section 12945.2(h)-(j).
CFRA Notice Requirements. California Code of Regulations, title 2, section
“In enacting CFRA ‘the Legislature expressly delegated to [California’s Fair
Employment and Housing] Commission the task of “adopt[ing] a regulation
specifying the elements of a reasonable request” for CFRA leave.’ The regulation
adopted by the commission provides, in part, to request CFRA leave an
employee ‘shall provide at least verbal notice sufficient to make the employer
aware that the employee needs CFRA 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 necessary
to determine whether the employee is requesting CFRA leave and to obtain
necessary information concerning the leave (i.e., commencement date, expected
duration, and other permissible information).’ The regulation further provides,
‘Under all circumstances, it is the employers responsibility to designate leave,
paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information
provided by the employee . . . , and to give notice of the designation to the
employee.’ (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 602-603 [210 Cal.Rptr.3d 59], quoting Cal. Code Regs., tit. 2,
§ 11091(a)(1), internal citations omitted.)
“The employee must ‘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 employer in turn is charged
with responding to the leave request “as soon as practicable and in any event no
later than ten calendar days after receiving the request.’ (Olofsson v. Mission
Linen Supply (2012) 211 Cal.App.4th 1236, 1241 [150 Cal.Rptr.3d 446], internal
citations omitted.)
“[Cal. Code Regs., tit. 2, § 11091(a)(1)] appears to presume the existence of
circumstances in which an employee is able to provide an employer with notice
of the need for leave. Indeed, the regulation permits employers to ‘require that
employees provide at least 30 days’ advance notice before CFRA leave is to
begin if the need for the leave is foreseeable based on an expected birth,
placement for adoption or foster care, or planned medical treatment for a serious
health condition of the employee or a family member.’ However, the regulations
provide that this 30-day general rule is inapplicable when the need for medical
leave is not foreseeable: ‘If 30 days’ notice is not practicable, such as because of
a lack of knowledge of approximately when leave will be required to begin, a
change in circumstances, or a medical emergency, notice must be given as soon
as practicable.’ Further, ‘[a]n employer shall not deny a CFRA leave, the need
for which is an emergency or is otherwise unforeseeable, on the basis that the
employee did not provide advance notice of the need for the leave, so long as
the employee provided notice to the employer as soon as practicable.’ (Bareno
v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 563 [212
Cal.Rptr.3d 682], original italics; see Cal. Code Regs. tit. 2, § 11091(a)(2)-(4).)
“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.”
(Bareno, supra, 7 Cal.App.5th at p. 565.)
“[A]n employer bears a burden, under CFRA, to inquire further if an employee
presents the employer with a CFRA-qualifying reason for requesting leave.”
(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 249
[206 Cal.Rptr.3d 841].)
“Whether notice is sufficient under CFRA is a question of fact.” (Soria, supra, 5
Cal.App.5th at p. 603.)
“That plaintiff called in sick was, by itself, insufficient to put [defendant] on
notice that he needed CFRA leave for a serious health condition.” (Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255 [82 Cal.Rptr.3d
“The regulations thus expressly contemplate that an employee may be out on
CFRA-protected leave prior to providing medical certification regarding that
leave.” (Bareno, supra, 7 Cal.App.5th at p. 568, original italics; see Cal. Code
Regs., tit. 2, § 11091(b)(3).)
“CFRA establishes that a certification issued by an employee’s health provider is
sufficient if it includes ‘[t]he date on which the serious health condition
commenced’; ‘[t]he probable duration of the condition’; and ‘[a] statement that,
due to the serious health condition, the employee is unable to perform the
function of his or her position.’ (Bareno, supra, 7 Cal.App.5th at pp. 569-570.)
“[A]n employee need not share his or her medical condition with the employer,
and a certification need not include such information to be considered sufficient:
‘For medical leave for the employee’s own serious health condition, this
certification need not, but may, at the employee’s option, identify the serious
health condition involved.’ (Bareno, supra, 7 Cal.App.5th at p. 570, fn. 18,
original italics.)
“Under the CFRA regulations, the employer has a duty to respond to the leave
request within 10 days, but clearly and for good reason the law does not specify
that the response must be tantamount to approval or denial.” (Olofsson, supra,
211 Cal.App.4th at p. 1249.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA),
¶¶ 12:852-12:853, 12:855-12:857 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][e] (Matthew Bender)

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