Lessening The Risk of Leave Interference

Under state law – California Family Rights Act (CFRA) – an employer may not “interfere with, restrain, or deny the exercise of, or the attempt to exercise,” an employee’s right to take protected leave under the statute.  Under federal law – Family Medical Leave Act (FMLA) – a similar mandate applies making it unlawful for an employer “to interfere with, restrain, or deny” FMLA rights.  Interference covers a wide breadth of conduct having the same effect; eliciting a belief in the reasonable employee that the taking of leave is discouraged.

Under the law – state or federal – an employee need not prove that their request for leave was actually denied. Any words or actions taken by a supervisor/manger (at the time of or subsequent to the request) having the effect of dissuading or conveying disapproval of the need for leave are sufficient to support a claim of interference. In other words, the company could do the right thing by providing the protected leave, and still face risk if the employee had to overcome what it believes was the preference of the employer that leave not be taken. What words or actions would suffice? Here are a few examples:

• Wow, that’s the third request for leave this year! Are you sure you need to be out?
• I’ll submit this request, but don’t expect me to be so accommodating the next time or their will be consequences.
• It’s going to be really tough for us when you’re out; harvest is just around the corner, and you know we’re under-staffed.
• Submitting the leave request, but then piling on the work assignments with the hope that all the employee’s projects are completed before the leave begins. 
• Offering the employee alternative options (e.g., remote work or additional comp-days/sick days).

To lessen the risk, it is imperative to make sure that all supervisors/mangers are trained to understand:

• It is not their responsibility to determine whether leave can be granted or not.
• Stray comments about the employee’s medical condition or request for leave are prohibited.
• Any comment or actions that would lead a reasonable employee to believe that the company (i.e., the supervisor/manager) would prefer they not take a leave are prohibited.
• Any conversation with an employee concerning leave (whether a request was made or not) should be reported up the command chain so that the company can communicate to the employee that, should the need arise, it is willing to provide protected leave.

Employers should not be afraid to communicate with employees requesting or exploring the need for leave. A high-level communication asking simply, “what do you need, and how can we provide it” is sufficient to get the leave-ball rolling, lower risk and keep the lines of communication open.

Members with questions about providing leave under state or federal law should contact Western Growers and consider attending one of our upcoming Leave Law Seminars.