Avoid Surprises by Checking in with Employee During Family Leave

Is there any requirement to notify an employee in writing when their federal and/or state family leave is ending?

Employers are not required to provide written notification under either the federal Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) at the end of an employee’s family leave.

There are, however, several important reasons an employer should communicate with an employee periodically throughout the family leave, preferably in writing, and especially as the expected end date of the leave approaches.

Too often an employee fails to return to work on the date the employer expects them back due to a lack of clear communication between employer and employee.

Clarity About Return Date

At the start of an employee’s family leave, an employer is required under both the FMLA and CFRA to provide a written designation notice, but the family leave regulations don’t require the designation to provide a specific end date of the leave or a specific return-to-work date.

This often leads to confusion about what date an employee needs to be back and means that clear ongoing documented communication between employer and employee about the exact expected return date is critical.

Leave Extensions

Employees who originally provided medical certification for a leave shorter than the full 12 weeks allowed under the law often will need to extend their leave beyond the original expected return date.

It’s not uncommon for employees to believe that a promise by their health care provider to send a note to their employer automatically extends their leave and protects their job, without any action on their part. All too often, the health care provider fails to send the medical certification to the employer, and the employer has no idea what has happened to the employee when they fail to return on the originally anticipated date.

Instead, for an extension of leave, the employee should contact the employer to request the extension, which would then need to be supported by another medical certification.

If an employer does unexpectedly receive a new certification supporting the need for extending a leave, the employer should reach out to the employee to confirm that the employee wants to take more leave, and then properly designate the additional leave time in writing.

Privacy Concerns

Many employers are afraid to reach out to their employees during a family leave, citing concerns about an employee’s privacy or believing that the law somehow prohibits an employer from “bothering” an employee while they’re off work.

The good news is the law specifically allows an employer to require an employee on family leave to report periodically on the employee’s status and intent to return to work.

If the employee fails to report in, there is nothing wrong with an employer reaching out to check in on the employee and reconfirm the expected return date.

This check-in also is an opportunity to discuss whether a leave may need to be extended past the original planned return date, and what certifications the employee may need to provide for an extension.

Ending Leave Early

Checking in periodically on an employee can allow the employer an opportunity to find out if an employee is in fact planning to return to work at all.

An employee might tell the employer they are not planning to come back, frequently either because their medical condition has worsened, they have decided not to return to work after bonding with a new baby, or they’ve found another job.

If, during the leave, an employee gives unequivocal notice of their intent not to return, the leave ends at that point and the employee has no right to return to their job, in effect ending the employment relationship. This also ends the employer’s obligation to maintain health benefits (subject to COBRA requirements).

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.