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.
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.
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.
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.
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
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.
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.)