In Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237 (2008), the California Court of Appeal clarified what an employee must do in order to request leave under the California Family Rights Act (“CFRA”). (CFRA permits employees to take leave from work for certain personal or family medical reasons without jeopardizing the employee’s job security. In general, CFRA makes it unlawful for an employer of 50 or more employees to refuse to grant an employee’s request to take up to 12 workweeks in any 12–month period for family care and medical leave or for an employer to discharge or discriminate against an employee because of his/her exercise of the right to family care and medical leave under CFRA.)
The salient facts of Avila are set forth below.
Factual Background
Plaintiff Henry Avila was an employee of Chelsea Food Services (“Chelsea”), a division of Continental Airlines (“Continental”). At all relevant times, Chelsea was an airline food caterer at Los Angeles International Airport (“LAX”) and other locations.
In December 2004, Avila was hospitalized for acute pancreatitis and missed four days of work. Avila testified that when he returned to work, he provided two medical forms from Kaiser Permanente (the “Kaiser forms”) establishing that he had been hospitalized. He also testified that after he returned to work, he told approximately 50 people that he had been sick, although he did not talk to his supervisors.
Avila was charged two recordable absences as a result of his illness and recuperation – which meant that he now had a total of six recordable absences for the relevant 12-month period.
In January 2005, Avila incurred another recordable absence. On January 18, 2005, Daysi Bellamy (Chelsea’s Human Resources Manager) determined that Avila had been absent from work seven times in the preceding 12-month period and accordingly determined that Avila would be suspended and terminated. Judy Tanes (Chelsea’s LAX General Manager) and a human resources manager for Continental approved Bellamy’s decision to terminate Avila. Neither individual had any independent knowledge of Avila’s employment situation.
The next day, at Bellamy’s direction, Leonard Johnson (Assistant Operations Manager) suspended Avila from his employment and told Avila that his employment would probably be terminated. Avila told Johnson that he had been “sick.”
On January 25, 2005, Bellamy and Johnson met with Avila and informed him that he was terminated, effective immediately – to which Avila responded that he had been hospitalized with pancreatitis.
The next day, Avila and his nephew hand-delivered a letter to Tanes, explaining Aviles’s illness, providing the medical records relating to Avila’s hospitalization, and requesting his reinstatement. Avila also requested an appeal hearing pursuant to company policy. The appeal board upheld the termination.
In October 2005, Avila filed a lawsuit against Continental, alleging, among other things, wrongful termination in retaliation for Avila’s exercise of his rights under CFRA. Specifically, Avila asserted that he was terminated in retaliation for taking CFRA leave.
The trial court ruled in Continental’s favor on Avila’s CFRA retaliation claim, reasoning that Avila had failed to request leave or an accommodation under CFRA for his illness. Avila appealed the trial court’s ruling.
Avila pointed out that he called in sick on December 15, 16, and 19, 2004 and that he submitted the Kaiser forms for these absences. Continental argued that Avila’s calling in sick and submitting the Kaiser forms did not constitute “requests” for CFRA leave because in neither instance did Avila “request” or “ask for” leave. According to Continental, the fact that Avila “called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave. . . .” (Avila, 165 Cal.App.4th at 1255.)
The Court of Appeal disagreed with Continental. The Court of Appeal noted that Avila’s December 19, 2004 Kaiser form indicated that Avila had been hospitalized for three days. And CFRA defines a “‘serious health condition'” as any “‘illness, injury, impairment, or physical or mental condition that involves..: [¶] [i]npatient care in a hospital.'” (Avila, 165 Cal.App.4th at 1255 (citing Cal. Gov. Code section 12945.2(c)(8)).) Thus, the issue was whether Avila’s Kaiser forms constituted a “request” for CFRA leave.
In analyzing this issue, the Court of Appeal started out by noting that CFRA does not define what constitutes a “request” for leave. Instead, the California legislature delegated to the Fair Employment and Housing Commission (the “Commission”) the task of “‘adopt[ing] a regulation specifying the elements of a reasonable request'” for CFRA leave. (Avila, 165 Cal.App.4th at 1256 (citing Cal. Gov. Code section 12945.2(a)).)
In turn, the Commission adopted a regulation that states in pertinent part that to request CFRA leave, “‘[a]n 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.'” (Avila, 165 Cal.App.4th at 1256 (citing Cal. Code Regs., tit. 2, section 7297.4(a)(1) (emphasis added)).)
In light of the above, the Court of Appeal concluded that where, like here, the case involved a medical emergency, notice on a hospital’s preprinted form (such as Avila’s Kaiser forms) that an employee was hospitalized and unable to work may be sufficient to inform an employer that the employee may have suffered a serious medical condition under CFRA.
Moreover, Avila’s absence itself under such circumstances suggested the necessity of a CFRA leave. Such information may be “‘sufficient to make the employer aware that the employee needs CFRA-qualifying leave,'” and therefore, may constitute a “‘request'” for CFRA leave. (Avila, 165 Cal.App.4th at 1257 (citing Cal. Code Regs., tit. 2, section 7297.4(a)(1)).) In other words, Avila was not required to expressly mention CFRA in order to request leave under CFRA. Read the full Court of Appeal decision here.
If you have believe that you were retaliated against for exercising your rights under CFRA, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.