If an employee returning from a pregnancy disability leave cannot be reinstated in the same position (discussed above), an employee generally has a right to be reinstated in an available comparable position. 2 CCR § 7291.9(c)(2).
A comparable position is deemed to be available if it is open on the employee's scheduled return date, or within ten days thereafter. 2 CCR § 7291.9(c)(2)(A)(The employee must be qualified for the position.)
An employer has two possible defenses to a denial of reinstatement to a comparable position.
- Comparable position unavailable: The reinstatement obligation is subject to the defense that there is no available comparable position. 2 CCR § 7291.9(c)(2)(A).
- Business necessity: An employer is excused from reinstating the returning employee to an available comparable position if doing so "would substantially undermine the employer's ability to operate the business safely and efficiently." 2 Ca CCR § 7291.9(c)(2) (B).
Hope this helps.
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