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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37952
Experience:  Retired (mostly)
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About the same person in previous questions, Do I have to hire

Customer Question

About the same person in previous questions, Do I have to hire her back when she is done with her disability?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.
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.

  1. 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).
  2. 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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Customer: replied 5 years ago.
i dont think you are the same attorney i was discussing the case with previously because your answer does not fit the scenario.

Expert:  socrateaser replied 5 years ago.
You didn't request the same attorney. If you would like, I can alert her to this Q&A. Or, if you prefer, I will be happy to clarify any inconsistency that may have been inadvertantly created.

So, please let me know your preference.

However, your question (I think) was whether or not you had to hire the employee back after she returned from pregnancy disability? And, my answer is dispositive to that question -- i.e., yes, you must reinstate the employee, unless one of the two exceptions provided exists.

If you are still unclear on the answer, or you believe that I don't correctly understand the issue, please let me know (assuming you still want my assistance), and I will try to clarify.

Thanks.

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