The San Diego Community College District Learns a Tough Lesson Regarding Terminating an Employee Immediately After She Requested a CFRA Leave

The San Diego Community College District Learns a Tough Lesson Regarding Terminating an Employee Immediately After She Requested a CFRA Leave

by Susana P. Solano, Esq.

California’s laws regarding disability, accommodations, and family or medical leave under the California Family Rights Act (CFRA) continue to create challenges for employers. One common concern is the termination and/or discipline of an employee who has requested or is on a protected leave.

In Bareno v. San Diego Community College District, plaintiff Bareno was disciplined and served a three-day suspension. On the day she was scheduled to return from her suspension, Bareno informed her supervisor that she was sick and depressed and needed to go to the hospital, and later said she would be out on medical leave until the end of the week. The next day, she emailed her supervisor a Work Status Report (WSR) stating the dates of the leave, the onset date of the condition, and the next appointment with the provider. The College did not dispute the WSR or medical certification. Bareno emailed her supervisor a second WSR, extending her leave by another week. The College claimed it never received the second WSR, and took no further action to inquire whether Bareno’s leave had been extended. The College assumed Bareno had abandoned her position and terminated her. Unware of her termination, Bareno provided two more WSR. Upon learning of her termination, she provided the College with copies of all of certifications and stated she had not resigned. The College did not change its position. Bareno filed a retaliation complaint.

The Court of Appeal held that a trier of fact could conclude that Bareno acted reasonably, and therefore sufficiently requested CFRA leave, because she notified her supervisor and the College President of her need for leave, and the College had not challenged the sufficiency of the first medical certification. Even if the College had not received the email containing the second medical certification, the trier of fact would have to decide whether the College was justified in rejecting Bareno’s later attempts to rectify the situation by providing copies of the medical certification she had emailed and the College had not received. A trier of fact could also find that Bareno sent the e-mail and her supervisor overlooked or purposely deleted it. The Court viewed the College’s failure to notify Bareno that it had not received the second medical certification as intentional failure to engage with Bareno to determine whether she needed to extend her leave or to discuss the lack of recertification, as required by the CFRA. The Court also held that the WSR was sufficient medical certification under the CFRA. The Court concluded that the temporal proximity between the request for leave and termination was suggestive of retaliation.

This case serves as a reminder to employers of the importance of responding properly to an employee’s request for an accommodation or a family or medical leave, engaging in a good faith interactive process, and exercising extreme caution when terminating an employee who recently exercised his or her right under the CFRA.

See also: EEOC’s Guidance on Mental Health Condition Accommodations under the ADA