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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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We have a pregnant employee in her first tri-mester. She has

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We have a pregnant employee in her first tri-mester. She has a doctor's note saying that she needs to be gone for 2 weeks. we can't hold that position for her that long due to the nature of our business. can we terminate her?
The California Pregnancy Disability Leave Law (PDLL) provides that following a pregnancy disability leave, an employee generally has the right to be reinstated to the same position she held before the leave. 2 Cal.C.Regs. § 7291.9(c)(1). There are two exceptions to an employee's right of reinstatement:

  1. Position no longer exists: An employee has no greater rights than she would have had if continuously employed. 2 Cal.C.Regs. § 7291.9(c)(1). This means that there is no right to reinstatement in the same position if an employee “would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).” 2 Cal.C.Regs. § 7291.9(c)(1)(A).
  2. Business necessity: An employee has no reinstatement right if “each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business safely and efficiently.” 2 Cal.C.Regs. § 7291.9(c)(1)(B).


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 to an available comparable position. 2 Cal.C.Regs. § 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 Cal.C.Regs. § 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 Cal.C.Regs. § 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 Cal.C.Regs. § 7291.9 (c)(2)(B).

The regulations use the term "substantially undermine," when discussing the employer's exceptions to holding the employee's job. This means that the employer bears the burden of demonstrating "clearly and convincingly" that there was no reasonable alternative to the employee's termination. If a temporary worker could have been hired, that would defeat the employer's exception.


The point is that this is a very difficult burden of proof, and unless the employee who is taking leave is engaged in some sort of national security job position, the employer will have a hard uphill climb to prevail, based upon the manner in which the laws and regulations are written -- because they strongly favor pregnant employees.


Hope this helps.

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