"NEW FMLA LEAVE REQUEST FORM
CDCR has implemented a revised request for FMLA/CFRA form.
Institutions are requiring staff to complete the form prior to providing the FMLA Certification packets.
CCPOA has questioned the State regarding this new form/procedure and has been informed that the new form is required so that local institutions may verify that the employee is entit...led to the leave prior to providing the Certification package. Information needed to verify eligibility may include:
- Has the employee been employed for the prior 12 months?
- Has the employee worked the required 1,250 hours in the year prior to the requested leave?
- Is the leave for a qualifying reason?
- Is the leave for a qualifying family member?
FMLA law (CFR §825.301) states: “An employee giving notice of the need for FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine whether the leave qualifies under the Act. If the employee fails to explain the reasons, leave may be denied.”
Therefore, the state has not violated FMLA when it requires the completion of the form.
Another reason of concern is the area on the form regarding “Reason for Leave,” particularly box (a) which indicates that the leave is requested due to “A serious health condition that makes me unable to perform the essential functions of my job.”
FMLA law (CFR §825.123 (a)) states: “Definition. An employee is unable to perform the functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with disabilities Act (ADA), as amended, 42 U.S.C. 12101 et seq., and the regulations at 29 CFR 1630.2(n).
An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.”
This definition indicates that a health care provider is the person who determines if a health condition is an FMLA qualifying condition which renders the employee unable to perform at least one of the essential function of the job.
The use of the term “unable to perform the essential functions of the job” on this new form triggers alarm bells with many Unit 6 employees. It is this exact language the state uses to begin the medical termination process.
For the state to expect a Unit 6 employee requesting FMLA leave to accept this language is unrealistic. The Unit 6 employee is not a medical doctor and cannot make the determination that a condition precludes the ability to perform any or all of the essential functions of the job.
However the request is for FMLA to provide for time lost due to a medical condition.
Therefore it is CCPOA’s position that the safest course of action is to cross through that part of the language on the form which addresses the inability to perform essential functions.
To conclude, it is legal for management to require the completion of the form prior to providing the Certification packet. It is acceptable to cross out language on this form which does not accurately reflect the employees’ situation and is best answered by a medical opinion."