Can we replace a worker who is out on pregnancy disability leave?

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in Hiring,Human Resources,Maternity Leave Laws

Q. One of our employees is on pregnancy disability leave. We are a small company and it will be difficult for us to keep her position open. May we hire another worker to replace her based on this hardship?

A.
Under California law, employers are prohibited from discriminating against an employee “because of pregnancy.” Moreover, an employer must provide up to four months of leave for a worker who is “disabled” by her pregnancy and an additional 12 weeks for bonding with the child under the California Family Rights Act.

At the end of a pregnancy disability leave, the employee is entitled to be reinstated to the position she previously held. The Fair Employment and Housing Commission (FEHC) has taken the position that an employer may be excused from returning the worker to the same position if:

  1. She would not otherwise be employed in that job for legitimate business reasons unrelated to the leave (such as a layoff because of a plant closure) or
  2. Preserving the employee’s job or duties would “substantially undermine the employer’s ability to operate the business safely and efficiently.”

When evaluating whether preserving a worker’s job “substantially undermines” the safety or efficiency of business operations, a court would probably consider that a small employer may experience more difficulties as a result of an absence than a large employer. Nonetheless, the employer must show that preserving the job (for example, leaving the position unfilled or hiring a temporary worker) created more than just an inconvenience.

Note that even if the employer is excused from keeping the worker’s job open, the company may be obligated to reinstate the worker in a comparable position. The FEHC defines comparable as “employment in a position which is virtually identical to the employee’s original position in terms of pay, benefits and working conditions.”

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