Q. Under what circumstances can we deny reinstatement to an employee who has been out on leave under the California Family Rights Act (CFRA)?
A. Upon returning from CFRA leave, an employee generally must be reinstated to the “same or a comparable position.” That’s defined as “employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.”
An employer may deny reinstatement to an employee, however, if his or her position ceased to exist (such as in a layoff). An employer also may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
1. The employee is a salaried employee who is among the highest-paid 10% of the employer’s employees who are employed within 75 miles of the worksite at which that employee is employed.
2. The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
3. The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines such action is necessary.
If the leave has already commenced, the employer must give the employee a reasonable opportunity to return to work following the notice prescribed above.
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