FMLA/CFRA Leave Violation Response Guide for Employers

Evaluate Claims | Assert Defenses | Respond Strategically | Protect Your Business

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Understanding Leave Violation Claims Against Your Business
You Have Received a Leave Violation Demand Letter: An employee or former employee is claiming you violated their rights under the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), or Pregnancy Disability Leave (PDL). These claims can result in significant liability including back pay, front pay, benefits, liquidated damages, and attorney's fees. A strategic response is essential to protect your business.
Overview of Leave Laws

Three primary leave laws may apply to California employers. Understanding each is critical to evaluating the claim against you:

Leave Law Coverage Eligibility Leave Amount
FMLA (29 USC 2601+) 50+ employees within 75 miles 12 months employed, 1,250 hours worked 12 weeks unpaid per 12-month period
CFRA (Gov. Code 12945.2) 5+ employees anywhere in California 12 months employed, 1,250 hours worked 12 weeks unpaid per 12-month period
PDL (Gov. Code 12945) 5+ employees anywhere in California No minimum tenure or hours required Up to 4 months for pregnancy disability
Key Difference - CFRA Coverage Threshold: As of January 1, 2021, CFRA applies to employers with 5 or more employees, significantly expanding coverage compared to FMLA's 50-employee threshold. Many employers covered by CFRA are not covered by FMLA, and vice versa.
Types of Leave Claims: Interference vs. Retaliation

Leave violation claims fall into two primary categories with different elements:

Claim Type Definition Employee Must Prove Key Defense Opportunities
Interference Employer denied, discouraged, or interfered with employee's exercise of leave rights (1) Entitlement to leave, (2) Employer denied benefit to which employee was entitled Employee not eligible; proper certification not provided; leave was actually granted
Retaliation Employer took adverse action against employee for exercising or attempting to exercise leave rights (1) Engaged in protected activity, (2) Adverse employment action, (3) Causal connection between the two Legitimate non-retaliatory reason for action; no causal connection; temporal proximity insufficient
Mixed-Motive Defense Limited: Under CFRA and FEHA, if protected activity was a "substantial motivating factor" in the adverse action, the employer is liable even if other legitimate reasons also contributed. This is a more employee-friendly standard than federal FMLA analysis.
Common Leave Violation Allegations
  • Denial of Leave Request: Employer refused to grant FMLA/CFRA leave to an eligible employee for a qualifying reason
  • Failure to Reinstate: Employee was not restored to the same or equivalent position upon return from leave
  • Termination During Leave: Employee was terminated while on approved leave or shortly after returning
  • Discipline for Leave Use: Employee was disciplined, demoted, or received negative performance review due to leave usage
  • Failure to Maintain Benefits: Employer failed to maintain health insurance or other benefits during leave period
  • Discouragement of Leave: Employer made statements or took actions that discouraged employee from taking leave
  • Certification Abuse: Employer improperly demanded excessive certification or recertification
  • Counting Leave Against Attendance: Employer counted protected leave as an attendance violation
Qualifying Reasons for Leave

Employees are entitled to leave only for specific qualifying reasons. The claim may fail if the reason does not qualify:

Qualifying Reason FMLA CFRA PDL
Birth and bonding with newborn Yes Yes No (but pregnancy/childbirth covered)
Placement of child for adoption/foster care Yes Yes No
Care for spouse with serious health condition Yes Yes No
Care for parent with serious health condition Yes Yes No
Care for child with serious health condition Yes Yes No
Employee's own serious health condition Yes Yes No (unless pregnancy-related)
Pregnancy disability Yes No (separate from CFRA) Yes - up to 4 months
Care for grandparent, grandchild, sibling, domestic partner No Yes (expanded family) No
Military qualifying exigency Yes Yes No
Care for servicemember with serious injury/illness Yes (26 weeks) No No
Defense Opportunity: CFRA now covers an expanded definition of family members including domestic partners, grandparents, grandchildren, and siblings. However, FMLA does not cover these relationships. If the leave was for a non-covered family member, and only FMLA applies (not CFRA), this may be a complete defense.
Potential Damages and Penalties

Understanding potential exposure helps you evaluate the claim and settlement options:

Damages Type FMLA CFRA/FEHA
Lost Wages and Benefits Yes Yes
Front Pay Yes Yes
Liquidated Damages (double damages) Yes (unless good faith) No
Emotional Distress Damages No Yes
Punitive Damages No Yes (for willful violations)
Attorney's Fees Yes (prevailing employee) Yes (prevailing employee)
Reinstatement Yes Yes
Evaluating Your Position: Was the Leave Claim Valid?
Conduct a Thorough Investigation: Before responding to the demand letter, conduct an internal investigation to determine: (1) whether the employee was eligible for leave, (2) whether proper procedures were followed, (3) whether the leave was actually denied or interfered with, and (4) whether any adverse action was taken and why. Document your findings carefully.
Step 1: Was the Employee Eligible?

Eligibility is the first line of defense. Both FMLA and CFRA have specific eligibility requirements:

Eligibility Requirement FMLA CFRA How to Verify
Length of Employment At least 12 months (need not be consecutive) At least 12 months (need not be consecutive) Review hire date, employment records, any prior employment periods
Hours Worked At least 1,250 hours in 12 months before leave At least 1,250 hours in 12 months before leave Review timekeeping records, payroll data
Worksite Location (FMLA only) Work at location with 50+ employees within 75 miles No location requirement Count employees at worksite and within 75-mile radius
PDL Has No Tenure/Hours Requirement: Pregnancy Disability Leave under California Government Code Section 12945 has NO minimum employment tenure or hours worked requirement. An employee is eligible for PDL on the first day of employment if disabled by pregnancy, childbirth, or related conditions.
Step 2: Is Your Business a Covered Employer?

Coverage thresholds differ between federal and state law:

Leave Law Coverage Threshold How Employees Are Counted
FMLA 50+ employees for at least 20 workweeks in current or prior year Count all employees on payroll, including part-time, temporary, on leave
CFRA 5+ employees anywhere in California Count all employees in California on payroll
PDL 5+ employees anywhere in California Count all employees in California on payroll
Defense Opportunity: If you have fewer than 50 employees within 75 miles of the employee's worksite, FMLA may not apply. However, CFRA and PDL apply with only 5 employees in California, so this defense is typically only useful for very small employers or non-California claims.
Step 3: Did the Employee Provide Proper Notice?

Employees have notice obligations that, if not met, may affect their rights:

Type of Leave Employee Notice Requirement Employer Response
Foreseeable Leave At least 30 days advance notice, or as soon as practicable If notice inadequate, may delay leave start
Unforeseeable Leave As soon as practicable (usually same day or next business day) May request explanation for delay in notice
Content of Notice Sufficient to put employer on notice of need for leave; need not mention FMLA/CFRA by name Must inquire further if notice suggests qualifying reason
Employer's Duty to Inquire: If an employee provides notice that could suggest a qualifying reason for leave, the employer has a duty to inquire further. Failing to do so and then claiming inadequate notice is typically not a successful defense.
Step 4: Was Medical Certification Properly Requested and Provided?

Certification issues can support denial, but procedures must be followed:

  • Request Must Be Timely: Employer must request certification within 5 business days of leave request (or learning of qualifying reason)
  • Employee Has 15 Days: Employee generally has 15 calendar days to provide certification after request
  • Opportunity to Cure: If certification is incomplete or insufficient, employer must give employee 7 days to cure deficiencies
  • Second Opinion: Employer may require second opinion at employer's expense if certification seems insufficient
  • Recertification Limits: Recertification generally cannot be requested more than every 30 days (exceptions apply)
Step 5: Did You Follow Required Procedures?
Employer Obligation Requirement Consequence of Failure
Eligibility Notice Notify employee of eligibility within 5 business days of leave request May be estopped from claiming ineligibility
Rights and Responsibilities Notice Provide written notice of expectations and obligations May not enforce certification deadlines
Designation Notice Notify employee whether leave is designated as FMLA/CFRA within 5 business days of having sufficient information May be estopped from counting leave against entitlement
Benefits Maintenance Maintain group health insurance on same terms as if employee continued working Liable for costs of coverage gaps
Job Restoration Restore to same or equivalent position upon return Interference violation; damages
Step 6: Document the Business Justification

If you denied leave, failed to reinstate, or took adverse action, document the legitimate business reason:

  • For Leave Denial: Was the employee truly ineligible? Was certification never provided despite proper requests? Was leave exhausted?
  • For Termination During Leave: Was the decision made before leave was requested? Was there a layoff, restructuring, or elimination of position unrelated to leave?
  • For Non-Reinstatement: Was the position eliminated for legitimate business reasons? Was the employee unable to perform essential functions? Is the employee a "key employee"?
  • For Discipline: Was the discipline for conduct unrelated to leave? Would the same discipline have occurred regardless of leave?
Documentation Is Critical: If you took any adverse action during or around the time of leave, you must be able to prove the action was completely unrelated to the leave. Contemporaneous documentation created at the time of the decision is far more credible than after-the-fact explanations.
Response Strategies for Leave Violation Claims
Strategic Response Required: Your response to a leave violation demand letter should be carefully crafted based on the strength of the claim, your defenses, and your business objectives. Do not respond emotionally or make admissions that could harm your position.
Strategy 1: Challenge Employee Eligibility
When to Use: If the employee did not meet the eligibility requirements for leave, this is often a complete defense to an interference claim. Eligibility issues include insufficient tenure (less than 12 months), insufficient hours worked (less than 1,250 hours), or for FMLA, working at a location without 50 employees within 75 miles.

Evidence to Gather:

  • Hire date documentation and employment records
  • Timekeeping records showing hours worked in the 12 months before leave request
  • Employee headcount records at the worksite and within 75-mile radius (FMLA)
  • Any eligibility notice provided to the employee
  • Evidence that employee was properly informed of ineligibility
Strategy 2: Assert Proper Procedure Was Followed
When to Use: If you properly granted, administered, and restored the employee from leave, you have a complete defense. This includes situations where the employee misunderstands what occurred or is mischaracterizing events.

Evidence to Gather:

  • Leave request documentation and approvals
  • Eligibility, rights and responsibilities, and designation notices provided
  • Certification requests and employee responses
  • Communications during leave
  • Reinstatement documentation showing same or equivalent position
  • Benefit continuation records
Strategy 3: Document Certification Failures
When to Use: If the employee failed to provide adequate medical certification despite proper requests and opportunities to cure, you may have been entitled to deny leave. However, you must have followed strict procedural requirements for requesting certification.

Procedural Requirements for Certification Defense:

  • Requested certification within 5 business days of leave request
  • Provided employee with proper form or written description of required information
  • Gave employee at least 15 calendar days to return certification
  • If certification was incomplete or insufficient, identified specific deficiencies and gave 7 days to cure
  • If certification was never provided, documented the failure before denying leave
Strategy 4: Establish Legitimate Business Reasons
When to Use: If you took adverse action that the employee claims was retaliatory, you must establish that the action was taken for legitimate, non-retaliatory reasons completely unrelated to the leave. This requires strong contemporaneous documentation.

Legitimate Business Justifications:

Adverse Action Legitimate Justifications Evidence Needed
Termination Layoff, position elimination, company-wide reduction, performance issues predating leave Business records, financial data, performance documentation from before leave
Non-Reinstatement Position eliminated, employee cannot perform essential functions, key employee exception Restructuring plans, job analysis, key employee notice documentation
Demotion Performance issues unrelated to leave, misconduct, legitimate restructuring Performance reviews, disciplinary records from before leave
Discipline Policy violations, attendance issues unrelated to protected leave, misconduct Attendance records excluding protected leave, policy violation documentation
Strategy 5: Address Job Restoration Issues

If the claim involves failure to reinstate, evaluate whether you met your restoration obligations:

  • Same Position: Ideally, the employee should return to the exact same position held before leave
  • Equivalent Position: If same position unavailable, equivalent position means same pay, benefits, terms, conditions, and substantially similar duties and responsibilities
  • Geographic Location: Position should be at same worksite or location
  • Shift and Schedule: Same or equivalent shift, schedule, and work assignment
Strategy 6: Settlement Considerations

In some cases, settlement may be the most strategic option:

Factor Favors Settlement Favors Defending
Strength of Defense Weak defense, procedural errors made Strong eligibility or certification defense
Documentation Poor records, after-the-fact explanations Contemporaneous documentation of legitimate reasons
Damages Exposure High-wage employee, long potential back pay period Low damages, employee quickly found new job
Litigation Costs Settlement less than defense costs Strong case justifies defense investment
Precedent Concerns Unique situation, no pattern concern Settlement may encourage other claims
Severance Agreements: If settling, ensure the agreement includes a comprehensive release of all leave-related claims, FMLA, CFRA, FEHA, and any other applicable statutes. Consider whether EEOC or DFEH charges need to be addressed.
Sample Response Letters
Customize These Templates: These sample letters provide a starting point. Modify them to accurately reflect your specific situation. Ensure all factual statements are accurate and all dates are correct. Consider having employment counsel review your response before sending, particularly for significant claims.
Sample 1: Response Asserting Employee Ineligibility
[COMPANY LETTERHEAD] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [and via email to: claimant@email.com] [Employee/Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO FMLA/CFRA DEMAND LETTER DATED [DATE] [Employee Name] - Claim of Leave Violation Dear [Recipient]: We are in receipt of your letter dated [Date] alleging that [Company Name] violated [Employee Name]'s rights under the Family and Medical Leave Act (FMLA) and/or California Family Rights Act (CFRA). We have conducted a thorough investigation of the allegations and must respectfully but firmly deny them. EMPLOYEE WAS NOT ELIGIBLE FOR FMLA/CFRA LEAVE Contrary to the allegations in your letter, [Employee Name] was not eligible for leave under FMLA or CFRA at the time of the leave request. Our investigation has confirmed the following: [SELECT APPLICABLE OPTION(S):] 1. INSUFFICIENT TENURE: [Employee Name]'s employment with [Company Name] began on [Hire Date]. At the time of the leave request on [Request Date], [he/she] had been employed for only [X] months. Both FMLA and CFRA require at least 12 months of employment to be eligible for leave. This requirement was not met. 2. INSUFFICIENT HOURS WORKED: Our payroll records confirm that [Employee Name] worked only [X] hours during the 12-month period preceding the leave request. Both FMLA and CFRA require an employee to have worked at least 1,250 hours during the preceding 12 months. [Employee Name] worked [X] hours short of this requirement. 3. FMLA LOCATION REQUIREMENT NOT MET: [Employee Name] worked at our [Location] facility. At the time of the leave request, there were only [X] employees within a 75-mile radius of this worksite. FMLA requires at least 50 employees within 75 miles for an employee to be eligible. This requirement was not met. PROPER NOTICE PROVIDED On [Date], [Company Name] provided [Employee Name] with written notice of [his/her] ineligibility for FMLA/CFRA leave, explaining the specific eligibility requirements that were not satisfied. [Copy attached.] This notice was provided within five business days of the leave request as required by law. ALTERNATIVE ACCOMMODATIONS Despite [Employee Name]'s ineligibility for protected leave, [Company Name] [describe any accommodations provided, e.g., "offered [X] days of unpaid personal leave," "worked with [Employee] to arrange a modified schedule," "approved [X] weeks of accrued paid time off"]. CONCLUSION [Employee Name] was not entitled to FMLA or CFRA leave because [he/she] did not meet the statutory eligibility requirements. [Company Name]'s actions were lawful and appropriate under the circumstances. We request that you withdraw this claim immediately. If a lawsuit is filed based on these allegations, [Company Name] will defend vigorously and will seek recovery of attorney's fees and costs to the extent permitted by law. If you have additional information that you believe affects this analysis, please provide it within 14 days. We remain willing to discuss any factual disputes. Sincerely, [Signature] [Name] [Title] [Company Name] Enclosures: - Copy of Ineligibility Notice dated [Date] - [Other relevant documentation] cc: [Company's Legal Counsel]
Sample 2: Defense of Leave Denial with Certification Issues
[COMPANY LETTERHEAD] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [Employee/Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO LEAVE VIOLATION DEMAND [Employee Name] - Certification Compliance Dear [Recipient]: We are in receipt of your letter dated [Date] alleging that [Company Name] improperly denied [Employee Name]'s request for leave under the Family and Medical Leave Act and/or California Family Rights Act. We have reviewed the allegations and the complete administrative record, and must deny these claims. LEAVE WAS NOT IMPROPERLY DENIED Your letter mischaracterizes [Company Name]'s handling of [Employee Name]'s leave request. The facts are as follows: CHRONOLOGY OF EVENTS: 1. On [Date], [Employee Name] requested leave for [describe reason, e.g., "a personal medical condition"]. 2. On [Date], within five business days as required by law, [Company Name] provided [Employee Name] with: - Notice of eligibility for FMLA/CFRA leave - Rights and Responsibilities Notice - Medical Certification form (DOL WH-380-E / appropriate state form) 3. The certification request specified that the completed form was due within 15 calendar days, by [Due Date]. 4. [SELECT APPLICABLE OPTION:] [OPTION A - No Certification Received:] No medical certification was submitted by [Due Date] or at any time thereafter. On [Date], [Company Name] sent a reminder notice advising that failure to provide certification may result in denial of leave. No response was received. [OPTION B - Incomplete Certification:] On [Date], [Employee Name] submitted a certification form that was incomplete. Specifically, [describe deficiencies, e.g., "the healthcare provider failed to complete Section II regarding the probable duration of the condition," "the form was not signed by a healthcare provider"]. On [Date], [Company Name] provided written notice of the specific deficiencies and allowed seven additional calendar days to cure. No additional information was received. [OPTION C - Insufficient Certification:] On [Date], [Employee Name] submitted a certification that was insufficient to establish a qualifying serious health condition. The certification stated only that [Employee Name] had [a condition] without providing information about the need for continuing treatment, incapacity, or other qualifying criteria. [Company Name] requested a second opinion from [Dr. Name] at company expense. That examination, conducted on [Date], confirmed that the condition did not meet the definition of a serious health condition under FMLA/CFRA. 5. Based on the failure to provide adequate certification, [Company Name] properly denied the leave request on [Date] and notified [Employee Name] in writing. COMPLIANCE WITH PROCEDURAL REQUIREMENTS [Company Name] strictly complied with all procedural requirements for requesting and evaluating medical certification: - Certification was requested within 5 business days of the leave request - Employee was given the full 15-day period to provide certification - Specific deficiencies were identified in writing - An opportunity to cure was provided - [Where applicable: A second opinion was obtained at company expense] PROPER NOTICE PROVIDED [Employee Name] was properly informed of [his/her] obligations regarding certification and the consequences of failing to provide adequate documentation. All required notices were provided timely. CONCLUSION [Company Name]'s denial of leave was lawful and based on [Employee Name]'s failure to satisfy the certification requirements of FMLA and CFRA despite ample opportunity to do so. We request immediate withdrawal of this claim. Sincerely, [Signature] [Name] [Title] [Company Name] Enclosures: - Initial Certification Request dated [Date] - Deficiency Notice dated [Date] - Denial Letter dated [Date] - Complete administrative file cc: [Company's Legal Counsel]
Sample 3: Response to Job Restoration Claim
[COMPANY LETTERHEAD] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [Employee/Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO JOB RESTORATION CLAIM [Employee Name] - FMLA/CFRA Reinstatement Dear [Recipient]: We are in receipt of your letter dated [Date] alleging that [Company Name] failed to properly restore [Employee Name] to [his/her] position following FMLA/CFRA leave. We have thoroughly reviewed this claim and provide the following response. [SELECT APPLICABLE RESPONSE OPTION:] OPTION A - EMPLOYEE WAS PROPERLY RESTORED: Your allegation that [Employee Name] was not properly restored is factually incorrect. Upon [Employee Name]'s return from leave on [Date], [he/she] was reinstated to [his/her] position as [Job Title] with: - The same salary of $[amount] [per hour/annually] - The same benefits including [health insurance, retirement, etc.] - The same reporting structure (reporting to [Supervisor Name]) - The same work location at [Address] - The same schedule of [days/hours] - The same job duties and responsibilities [If there were any differences, explain why they constitute an equivalent position:] While certain minor aspects of the position may have changed during [Employee Name]'s absence due to normal business evolution, the position remained substantially equivalent in all material respects as required by law. OPTION B - POSITION WAS ELIMINATED FOR LEGITIMATE BUSINESS REASONS: [Employee Name]'s position was eliminated on [Date] as part of a legitimate business restructuring that was unrelated to [his/her] leave. The facts are as follows: 1. On [Date], [Company Name] made the business decision to [describe restructuring, e.g., "eliminate the [Department] due to declining revenue," "consolidate operations at our [Location] facility," "eliminate [X] positions company-wide due to economic conditions"]. 2. This decision was made on [Date], [before/during] [Employee Name]'s leave, based solely on business necessity and not in any way related to [Employee Name]'s use of leave. 3. [Describe other employees affected:] [X] other employees in similar positions were also laid off, including [names/positions] who had not taken any protected leave. 4. The position of [Job Title] no longer exists at [Company Name]. No one is currently performing the duties that [Employee Name] previously performed. 5. [Employee Name] was provided with [describe any severance, benefits continuation, outplacement services, etc.]. OPTION C - KEY EMPLOYEE EXCEPTION: [Employee Name] was properly designated as a "key employee" under FMLA. [He/She] was among the highest-paid 10% of employees within 75 miles of [his/her] worksite. On [Date], prior to the commencement of leave, [Company Name] provided written notice that [Employee Name] was a key employee and that restoration could be denied if necessary to prevent substantial and grievous economic injury to operations. Upon [Employee Name]'s request to return from leave on [Date], [Company Name] determined that restoration would cause substantial and grievous economic injury because [explain specific economic harm, e.g., "the position had been filled by a critical replacement whose departure would result in [specific harm]," "[Employee] possessed unique skills that during the leave period had been distributed among multiple employees and could not be reconsolidated without substantial disruption"]. [Company Name] provided [Employee Name] with written notice of this determination and offered [describe any alternative accommodations offered]. OPTION D - EMPLOYEE UNABLE TO PERFORM ESSENTIAL FUNCTIONS: [Employee Name] was not restored to [his/her] position because [he/she] was unable to perform the essential functions of the job at the time of the requested return, with or without reasonable accommodation. Specifically: 1. The position of [Job Title] requires [describe essential functions, e.g., "lifting up to 50 pounds," "standing for 8-hour shifts," "operating heavy machinery"]. 2. Upon [Employee Name]'s request to return on [Date], [he/she] [provided/was requested to provide] a fitness-for-duty certification. 3. The fitness-for-duty certification indicated that [Employee Name] [could not perform essential functions / had restrictions of X that precluded essential functions]. 4. [Company Name] engaged in the interactive process and explored reasonable accommodations, but [describe why no accommodation was feasible, e.g., "no alternative positions were available that matched [Employee]'s restrictions," "the restrictions would have eliminated essential job functions"]. CONCLUSION [Company Name]'s actions were lawful and complied fully with the requirements of FMLA and CFRA. We request that this claim be withdrawn. If you have information that contradicts the facts set forth above, please provide it within 14 days. [Company Name] will vigorously defend against any lawsuit and will seek recovery of attorney's fees and costs as permitted by law. Sincerely, [Signature] [Name] [Title] [Company Name] Enclosures: - [Relevant documentation supporting response] cc: [Company's Legal Counsel]
Legal Defenses to FMLA/CFRA Leave Violations
Affirmative Defenses: Beyond denying the alleged violation, employers have several affirmative defenses available. These defenses must be specifically raised and proven. Proper documentation and procedural compliance are essential.
1. Employee Ineligibility (Hours, Tenure, Location)
The Defense: The employee was not eligible for FMLA/CFRA leave because they did not meet the statutory requirements for tenure (12 months), hours worked (1,250 hours), or for FMLA, worksite location (50 employees within 75 miles).

Legal Basis:

  • FMLA: 29 USC 2611(2)(A) - defines eligible employee
  • CFRA: Government Code 12945.2(a) - eligibility requirements

Evidence Required:

  • Employment records showing hire date and tenure
  • Timekeeping/payroll records showing hours worked in preceding 12 months
  • Employee headcount documentation for worksite and 75-mile radius (FMLA)
  • Notice of ineligibility provided to employee
2. Failure to Provide Adequate Certification
The Defense: The employee failed to provide a complete and sufficient medical certification despite proper requests and opportunity to cure, entitling the employer to deny leave.

Legal Basis:

  • FMLA: 29 CFR 825.313 - failure to provide certification
  • CFRA: 2 CCR 11091(b) - medical certification requirements

Procedural Requirements:

  • Requested certification within 5 business days
  • Allowed 15 calendar days for response
  • Identified specific deficiencies if incomplete
  • Allowed 7 days to cure deficiencies
  • Documented the failure before denying leave
3. Key Employee Exception
The Defense: The employee was a "key employee" (among the highest-paid 10% within 75 miles), was given proper notice of key employee status, and restoration was denied because it would cause substantial and grievous economic injury to operations.

Legal Basis:

  • FMLA: 29 USC 2614(b) - key employee exception
  • FMLA Regulations: 29 CFR 825.217-825.219

Requirements:

  • Employee is among highest-paid 10% within 75 miles
  • Written notice of key employee status provided at time of leave request
  • Determination that restoration would cause substantial and grievous economic injury
  • Written notice of denial of restoration with explanation
  • Reasonable opportunity for employee to return after receiving denial notice

Important Limitation: The key employee exception only applies to FMLA, not CFRA. California does not recognize the key employee exception.

4. Inability to Return to Work / Cannot Perform Essential Functions
The Defense: The employee was not able to perform the essential functions of the position, with or without reasonable accommodation, at the time of requested return from leave.

Legal Basis:

  • FMLA: 29 CFR 825.216(c) - employee must be able to perform essential functions
  • CFRA/FEHA: Employee unable to perform essential functions with or without accommodation

Requirements:

  • Clearly defined essential job functions (documented before leave)
  • Fitness-for-duty certification showing limitations
  • Evidence of good-faith interactive process
  • Documentation that no reasonable accommodation would enable performance
  • Documentation that no alternative positions were available
5. Fraud or Misuse of Leave
The Defense: The employee obtained leave through fraud, misrepresentation, or used leave for purposes other than the qualifying reason for which it was granted.

Legal Basis:

  • FMLA: 29 CFR 825.216(d) - employee who fraudulently obtains leave is not protected
  • CFRA: 2 CCR 11089(b) - employer may deny leave or restoration upon fraud

Examples of Leave Fraud:

  • Falsifying medical certification
  • Working another job while on leave for own serious health condition
  • Engaging in activities inconsistent with claimed medical condition
  • Taking leave for purposes unrelated to the approved reason

Caution: This defense requires clear evidence of fraud. Simply observing an employee engaged in social media activity or public outings does not necessarily prove fraud, as many serious health conditions have periods of relative wellness. Consult counsel before taking action based on suspected fraud.

6. Legitimate Non-Retaliatory Business Reason
The Defense: Any adverse action taken was for legitimate, non-retaliatory business reasons completely unrelated to the employee's leave.

Legal Basis:

  • Employee would have been treated the same regardless of leave
  • Decision was made before leave was requested or for reasons unrelated to leave
  • Other similarly situated employees (who did not take leave) were treated the same

Evidence Required:

  • Contemporaneous documentation of the business reason
  • Evidence the decision was made before leave or for unrelated reasons
  • Consistent treatment of other employees
  • Performance documentation, disciplinary records, business records
7. Failure to Give Proper Notice of Need for Leave
The Defense: The employee failed to provide adequate notice of the need for leave, preventing the employer from making proper arrangements.

Legal Basis:

  • FMLA: 29 CFR 825.302-303 - employee notice requirements
  • CFRA: 2 CCR 11091 - notice requirements

Requirements for Defense:

  • For foreseeable leave: employee failed to give 30 days advance notice (or as soon as practicable)
  • For unforeseeable leave: employee failed to give notice as soon as practicable
  • Employer had clear notice policies and employee was aware of them

Limitation: Failure to give proper notice typically only allows delay of leave start date, not complete denial. This is rarely a complete defense except in egregious cases.

8. Exhaustion of Leave Entitlement
The Defense: The employee had already exhausted their 12-week FMLA/CFRA entitlement for the 12-month leave year and was not entitled to additional protected leave.

Legal Basis:

  • FMLA and CFRA each provide 12 weeks per 12-month period
  • PDL provides up to 4 months for pregnancy disability (separate entitlement)
  • Once entitlement exhausted, employer may apply regular attendance policies

Evidence Required:

  • Leave tracking records showing amount of leave used
  • Definition of 12-month period used by employer (must be consistent)
  • Notice to employee of leave entitlement and usage
  • Calculation showing leave was exhausted before denial/termination
Defense Considerations Table
Defense Claim Type Addressed Strength of Defense Common Pitfalls
Employee Ineligibility Interference Strong if documented Failure to provide timely ineligibility notice
Certification Failure Interference Strong if procedure followed Failure to identify specific deficiencies, not giving cure opportunity
Key Employee Restoration only Moderate (FMLA only) Not available under CFRA; notice requirements strict
Inability to Perform Restoration Strong if documented Failure to engage in interactive process
Fraud/Misuse All claims Strong if proven Insufficient evidence; jumping to conclusions
Legitimate Business Reason Retaliation Depends on evidence Lack of contemporaneous documentation; timing issues
Notice Failure Interference Weak as complete defense Typically only delays leave, doesn't deny it
Leave Exhaustion Interference Strong if documented Inconsistent calculation methods; counting errors
Attorney Services
Received a Leave Violation Demand Letter?

FMLA, CFRA, and PDL claims can result in significant liability including back pay, front pay, liquidated damages, emotional distress damages, and attorney's fees. I help employers evaluate claims, assert valid defenses, respond strategically, and minimize exposure. Do not respond without understanding your rights and options.

How I Can Help
  • Claim Evaluation: I analyze the demand letter, employment records, and leave documentation to assess the strength of the claim and identify weaknesses
  • Eligibility Analysis: I review employment records to determine if the employee met FMLA/CFRA eligibility requirements
  • Procedural Compliance Review: I evaluate whether proper notice, certification, and designation procedures were followed
  • Defense Strategy: I identify all applicable defenses and develop a strategic response plan
  • Response Drafting: I prepare professional, legally sound response letters that protect your interests
  • Documentation Review: I identify gaps in documentation and help strengthen your position
  • Settlement Negotiation: I negotiate with employees and their counsel to achieve favorable resolutions
  • Litigation Defense: If sued, I defend your interests before the EEOC, DFEH/CRD, and in court
  • Policy Review: I review and improve your leave policies to prevent future claims
When to Consult an Attorney
Consider consulting an attorney if:
  • The demand letter comes from an attorney or the employee has retained counsel
  • The employee was a long-term or high-level employee with significant damages exposure
  • You terminated, demoted, or took adverse action during or shortly after leave
  • You are unsure whether proper procedures were followed
  • There are documentation gaps or you lack contemporaneous records
  • The claim involves pregnancy, disability, or other protected characteristics
  • An EEOC or DFEH/CRD charge has been filed
  • Multiple employees have made similar complaints
  • You want to improve policies and prevent future claims
What to Bring to Your Consultation
  • The demand letter you received
  • The employee's personnel file and employment records
  • Leave request documentation and any medical certifications
  • All eligibility, rights, and designation notices provided
  • Timekeeping and payroll records showing hours worked
  • Performance evaluations and disciplinary records
  • Communications with the employee regarding leave
  • Documentation of any adverse action and the reasons for it
  • Your leave policies and employee handbook
  • Timeline of relevant events
Schedule a Consultation

Book a call to discuss your situation. I will review the claim against your company, explain your legal options, and advise on the best strategy for responding and protecting your business.

Contact Information

Email: owner@terms.law

Frequently Asked Questions
First, do not panic and do not ignore the letter. Note any deadlines in the letter. Preserve all relevant documents including the employee's personnel file, leave documentation, medical certifications, communications, and timekeeping records. Conduct an internal investigation to determine the facts: Was the employee eligible? Were proper procedures followed? What was the reason for any adverse action? Do not discuss the claim with other employees or make statements that could be used against you. Consider consulting an employment attorney, especially if the employee has retained counsel or if significant liability is at stake.
FMLA is federal law (29 USC 2601+) that applies to employers with 50 or more employees within 75 miles and provides 12 weeks of unpaid leave. CFRA is California law (Government Code 12945.2) that applies to employers with 5 or more employees anywhere in California and also provides 12 weeks of unpaid leave. Key differences: (1) CFRA covers smaller employers; (2) CFRA covers an expanded definition of family members including domestic partners, grandparents, grandchildren, and siblings; (3) CFRA does not cover pregnancy disability (which is covered separately by PDL); (4) FMLA includes a 50-employee-within-75-miles requirement for employee eligibility that CFRA does not have; (5) The key employee exception exists under FMLA but not CFRA.
Yes, both FMLA and CFRA require the employee to have worked at least 1,250 hours in the 12 months preceding the leave request. If the employee did not meet this requirement, they are not eligible for protected leave under either statute. However, you must provide proper notice of ineligibility within 5 business days of the leave request. Also note that Pregnancy Disability Leave (PDL) under California law has no hours-worked requirement - an employee is eligible for PDL on their first day of employment if they are disabled by pregnancy, childbirth, or a related medical condition.
No, terminating an employee during leave is not automatically illegal, but it creates significant legal risk and requires strong documentation. An employee on FMLA/CFRA leave does not have absolute job protection. Termination is permitted if: (1) the employee would have been terminated regardless of the leave (e.g., position elimination in a legitimate reduction in force, termination decision made before leave was requested); (2) the employee engaged in misconduct that would warrant termination; or (3) the employee's leave entitlement has been exhausted. However, you must be able to prove with contemporaneous documentation that the termination was completely unrelated to the leave. The timing creates an inference of retaliation that you must overcome. Consult an attorney before terminating any employee on protected leave.
The key employee exception under FMLA (29 USC 2614(b)) allows employers to deny job restoration to salaried employees who are among the highest-paid 10% of employees within 75 miles, if restoration would cause "substantial and grievous economic injury" to operations. Important limitations: (1) The employee must be given written notice of key employee status at the time of the leave request; (2) The employer must make a good-faith determination that restoration would cause substantial and grievous economic injury; (3) The employee must be given written notice of the denial of restoration with an explanation; (4) Critically, California does not recognize the key employee exception. Under CFRA, there is no key employee exception, so California employers cannot use this defense for CFRA claims.
This is complex and a common source of employer error. For pregnant California employees eligible for all three: (1) Pregnancy Disability Leave (PDL) provides up to 4 months of leave for disability caused by pregnancy, childbirth, or related conditions. This runs concurrently with FMLA but NOT with CFRA. (2) After childbirth, CFRA provides an additional 12 weeks of baby bonding leave. (3) An eligible employee could receive up to 4 months PDL + 12 weeks CFRA = approximately 7 months of protected leave. Common error: running CFRA concurrently with PDL, which violates the law since CFRA baby bonding leave is separate from pregnancy disability leave. PDL has no tenure or hours-worked requirement.
Potential damages depend on which law was violated. Under FMLA: back pay, front pay, value of lost benefits, interest, and liquidated damages (equal to back pay unless employer proves good faith - effectively doubles damages). Under CFRA/FEHA: back pay, front pay, value of lost benefits, emotional distress damages (which can be substantial), and in cases of willful or malicious conduct, punitive damages. Under both: attorney's fees and costs are recoverable by the prevailing employee. CFRA claims can also be brought under FEHA, which has broader remedies. Damages can be substantial for long-term employees with high salaries, especially if reinstatement is not possible and front pay is awarded.

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