California Employers Must Properly Classify Health-Related Absences

In Avila v. Continental Airlines, Inc., the California Court of Appeals addressed employee notice obligations under the California Family Rights Act ("CFRA"). Upon proper notification from an employee (which varies depending on the circumstances), the CFRA requires covered employers to provide eligible employees up to 12 weeks unpaid leave to care for the employee´s own "serious health condition." Avila addressed whether an employee who never specifically requested CFRA leave nevertheless provided sufficient notice for such a leave.

In this case, Mr. Avila, a CFRA eligible employee of Continental Airlines, called in sick during his hospitalization but never specifically requested such absences be considered CFRA leave. Upon return to work, he provided Continental with documentation verifying his hospitalization. A month later, Mr. Avila was again absent from work, this time without any confirmed medical justification, and was thereafter terminated for excessive absenteeism. Continental considered the hospitalization related absences in its termination decision. Avila sued, contending such absences were CFRA protected and thus should not have been considered. Continental sought to dismiss the case, claiming Avila did not properly request CFRA leave, and thus the hospitalization stay could not be considered CFRA leave. The Court disagreed, reasoning that Mr. Avila's calling in sick, coupled with his providing documentation of his hospitalization, was sufficient to establish notice of a CFRA protected "serious health condition", entitling Mr. Avila to protected leave.

California employers should remain mindful that their written notice obligations under the CFRA (and FMLA as well) are far more exacting than what is required of employees. Accordingly, whenever a CFRA/FMLA eligible employee is absent from work for a reason which potentially might be CFRA/FMLA protected, California employers are well advised to determine whether such leave is indeed protected before classifying any absence as unexcused.