Cal. Code Regs. tit. 2 § 11089

Current through Register 2024 Notice Reg. No. 14, April 5, 2024

Section 11089 - Right to Reinstatement: Guarantee of Reinstatement; Rights upon Return; Refusal to Reinstate; Permissible Defenses

(a) Guarantee of Reinstatement.

(1) Upon granting the CFRA leave, the employer shall inform the employee of its guarantee to reinstate the employee to the same or a comparable position, subject to the defenses permitted by section 11089(d), and shall provide the guarantee in writing upon request of the employee.

(2) It is an unlawful employment practice for an employer, after granting a requested CFRA leave, to refuse to reinstate the employee to the same or a comparable position at the end of the leave, unless the refusal is justified by the defenses stated in section 11089(d).

(A) An employee is entitled to reinstatement even if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence.

(B) If an employee is no longer qualified for the position because of the employee's inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon returning to work.

(b) Rights upon Return.

The employee is entitled to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee's former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

(1) Equivalent benefits include benefits resumed in the same manner and at the same levels as provided when the leave began, subject to any changes in benefit levels that may have taken place during the period of CFRA leave affecting the entire workforce, unless otherwise elected by the employee.

(2) CFRA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, position, or geographic location that better suits the employee's personal needs on return from leave, from offering a promotion to a better position, or from complying with an employer's obligation to provide reasonable accommodation under the disability provisions of the Fair Employment and Housing Act (FEHA).

(c) Refusal to Reinstate.

(1) Definite Date of Reinstatement.

Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee to the same or a comparable position by the date agreed upon.

(2) Change in Date of Reinstatement.

If the reinstatement date differs from the employer's and employee's original agreement, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee to the same or a comparable position within two business days, where feasible, after the employee notifies the employer of the employee's readiness to return.

(d) Permissible Defenses.

(1) Employment Would Have Ceased or Hours Would Have Been Reduced.

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed on the requested reinstatement date in order to deny reinstatement. As per (a)(1) of this section, this burden shall not be satisfied if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence.

(A) If an employee is laid off during the course of taking CFRA leave and employment is terminated, the employer's responsibility to continue CFRA leave, maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise.

(B) If a shift has been eliminated or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon reinstatement.

(2) Fraudulently-obtained CFRA Leave.

An employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA's job restoration or maintenance of health benefits provisions. An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.

Cal. Code Regs. Tit. 2, § 11089

1. Change without regulatory effect renumbering former section 7297.2 to new section 11089 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section heading and section filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10).
3. Amendment of section heading, section and NOTE filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section and NOTE filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations; effective 1-1-2021 (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Editorial correction of HISTORY 4 (Register 2021, No. 3).

Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, 2611, 2612 and 2614; and 29 C.F.R. § 825.

1. Change without regulatory effect renumbering former section 7297.2 to new section 11089 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section heading and section filed 3-4-2015; operative 7/1/2015 (Register 2015, No. 10).
3. Amendment of section heading, section and Note filed 7-6-2020; operative 10/1/2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)