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You have certain obligations when an employee returns to work after taking family and medical leave. When you grant an employee’s leave request, you must inform the employee that you guarantee to reinstate the employee to the same or comparable position. You are required to put the guarantee in writing if the employee requests. Only under very limited circumstances can you refuse to honor the guarantee of reinstatement. Specific requirements apply to employees returning to work from PDL.
If you and the employee agree on a definite date of reinstatement at the beginning of the leave, you must reinstate the employee by or on that date. If the reinstatement date differs from your original agreement, you must reinstate the employee within two business days after the employee notifies you of the employee’s readiness to return.
This topic contains the following information:
You can require that an employee who has been on leave for the employee’s own serious health condition obtain a release to return to work. However, you can only require this if you have a uniformly applied practice of requiring such releases from other employees returning to work after illness, injury or disability. You must also inform the employee of this requirement before the leave begins. The release should be completed by the employee’s health care provider before the employee is back at work.
The FMLA Designation Notice and CFRA Notice and Designation forms can be used to advise the employee that such a release will be required. You should include a list of the essential functions of the employee’s job with the designation notice, at the time the notice is given to the employee. Be sure to include any consequences to the employee if a release to return to work is not obtained.
The Certification of Health Care Provider for Employee Return to Work form also can be used by the employee’s health care provider to release the employee to return to work. Be sure to include a list of the essential functions of the employee’s job if you have not previously provided it to the employee.
The employee is entitled to reinstatement upon certification from the health care provider that the employee is able to return to work. The employer is not entitled to seek a second opinion regarding the certification prior to reinstating the employee.1
However, once the employee is reinstated, the employer may require a fitness for duty exam consistent with the Americans with Disabilities Act, as long as the exam is job-related and consistent with business necessity.2 See Medical Examinations and Inquiries During Employment for more information.
In one case, a court allowed an employer to conduct a post-reinstatement fitness-for-duty exam of a peace officer who exhibited erratic behavior at work prior to taking FMLA leave for mental health issues.3
In the case, a senior investigator with a District Attorney's Office, a peace officer with authorization to carry a weapon, began behaving erratically at work and showed signs of instability and poor judgment. She took 12 weeks of FMLA and additional approved unpaid leave.
The employee’s doctor wrote a letter clearing her to return to work. The county reinstated her, but then requested that she undergo a fitness-for-duty exam.
The court ruled that an employer may restore an employee to work and then seek its own evaluation of the employee’s fitness for duty if that exam is:
California’s disability regulations also allow an employer to conduct fitness-for-duty exams of current employees that are both job related and consistent with business necessity.5
An employer is not entitled to obtain a release to return to work for each absence taken on an intermittent or reduced leave schedule. However, an employer is entitled to a release to return to work for such absences up to once every 30 days if reasonable safety concerns exist about whether the employee can perform the job duties.
Employment in a “comparable position” means employment in a position virtually identical to the employee’s original position in terms of pay, benefits, shift, schedule and working conditions, including privileges, fringe benefits and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. It must be performed at the same or a geographically close worksite from where the employee previously was employed. It ordinarily means the same shift or the same or an equivalent work schedule.
Benefits must be resumed in the same manner and at the same levels as provided when the leave began, subject to any changes in benefit levels that may have taken place during the period of CFRA/FMLA leave affecting the entire workforce, unless otherwise elected by the employee.
An employer may accommodate an employee’s request to be restored to a different shift, schedule, position or geographic location that better suits the employee’s personal needs on return from leave, from offering a promotion to a better position or from complying with an employer’s obligation to provide reasonable accommodation under the Fair Employment and Housing Act’s disability provisions.
As with other types of legally-mandated leaves of absence, the employee on CFRA and/or FMLA leave has no greater right to re-employment than the employee would have if not taking the leave.
When an employee is released to return to work, the employee returns to the job held before the leave unless the employee is no longer able to perform that job. If an employee is no longer qualified for the position because of an inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason as a result of the leave, the employee must be given a reasonable opportunity to fulfill those conditions upon returning to work.
If an employee is unable to return to work after the leave because of the employee’s own disability, you may have to consider an extension of leave as a form of reasonable accommodation for the disability. For more information, see “Extension of FMLA/CFRA as a Reasonable Accommodation of a Disability” on this page.
If the employee’s inability to return is for a reason other than the employee’s own disability, you are obligated to provide additional leave only if your policy permits such leave.
Both the CFRA and the FMLA prohibit discrimination or retaliation against an employee for exercising rights created by the laws. You cannot retaliate against an employee for taking family and medical leave or for giving information or testimony about leave.6 A supervisor may be held liable for retaliating against an employee where denial of a promotion or a recommendation for termination is attributable to the employee’s exercise of FMLA-protected rights.7
Several courts ruled that these protections extend to past and prospective employees as well. Refusal to rehire a former employee because of previous use of FMLA may violate the law.8
An employee returning from leave must have at least as much seniority as the employee had at the time of starting the leave, for purposes of layoff, recall, promotion, job assignment and seniority-related benefits such as vacation. The employee retains the same status and you must reinstate any benefits previously provided without any new qualification period, physical exams, etc.
During family and medical leave, the employee is entitled to accrual of seniority to the same extent and under the same conditions as would apply to any other non-family leave you grant:
Though an employee has the right to return to the position held before taking a family and medical leave, this right is not absolute. If you can show a lawful reason for not restoring an employee to the original position, such as the employee violating company policy, you can legally terminate the employee. The reason must be unrelated to the employee’s exercise of family and medical leave rights.
Under CFRA and FMLA regulations, an employee who fraudulently obtains CFRA or FMLA leave from an employer is not protected by the laws' job restoration or maintenance of health benefit provisions. In addition, if the employer maintains a uniformly applied policy governing outside or supplemental employment, this policy can continue to apply to an employee while on FMLA leave.9
The CFRA regulations specify that the employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.
In Sista v. CDC Ixis North America, Inc., the Second Circuit Court of Appeals found a termination lawful because it was the result of the employee’s threats to other employees and not because of the employee’s exercise of rights under the FMLA. If an employer terminates an employee for a legitimate, nondiscriminatory reason, the employer does not violate the FMLA.10
You can refuse to reinstate an employee under circumstances involving key employees and layoffs/reductions in hours.
The FMLA provides a narrow exception to the right of reinstatement, allowing employers to refuse to reinstate “key employees” under certain circumstances specified by federal law. However, this exception is largely inapplicable for California employers subject to the CFRA.
Under the FMLA, a key employee is defined a salaried employee among the highest paid 10 percent of the workforce. Under the exception, an employer can refuse to reinstate the key employee when reinstatement would cause substantial and grievous economic injury to your operations, such as threatening the economic viability of the business or causing substantial, long-term economic injury.
In the past, the CFRA mirrored the key employee exception from the FMLA, but the key employee exception was removed in 2021. As a practical matter, the elimination of the key employee exception from CFRA makes the FMLA exception largely inapplicable for California employers since the employers covered by FMLA will also be covered by the CFRA, which requires employers to reinstate. Employers should consult with legal counsel before denying reinstatement under this exception.
To deny reinstatement, you must show that:
There are several specific requirements that must be followed before you can deny reinstatement based on key employee status.
An employee who takes family and medical leave can be refused reinstatement for reasons unrelated to the leave, such as misconduct or an organization layoff due to lack of work. Consider consulting legal counsel before taking action.
Proving that an employee would have been laid off regardless of whether the employee was on family and medical leave is difficult. The following scenarios would not constitute a sufficient defense to an employer’s refusal to reinstate an employee after family and medical leave:
You can justify refusing to reinstate an employee if you can prove that you would have laid off the employee regardless of whether the employee was on FMLA/CFRA. This can be difficult to prove unless you have documented proof that you would have laid off the employee based on:
You can recover the cost of group health insurance premium payments made during any unpaid part of a family and medical leave if the employee:
However, if the reason for the failure to return is either beyond the control of the employee or because of a serious health condition starting, continuing or recurring, you cannot recover your costs.
An employer can recover the premium that it paid for maintaining group health care coverage during any unpaid part of the CFRA/FMLA leave if both of the following conditions occur:
Taking family and medical leave is not a qualifying event for Consolidated Omnibus Budget Reconciliation Act (COBRA) purposes. However, an employee who does not return from such leave within available time limits or returns on a reduced schedule may be entitled to COBRA if eligibility for health benefits ceases.>/p>
California’s disability regulations require employers to initiate an interactive process with an employee when the employee has a disability and has exhausted leave under FMLA and/or CFRA to ascertain whether additional leave would be an effective reasonable accommodation. For more information on the interactive process, see Disabilities & Accessibility.
If an employee cannot perform the essential functions of a job, but has exhausted leave under CFRA and/or FMLA, an extension of leave may be a reasonable accommodation of the disability. To qualify as a reasonable accommodation, the leave must be likely to be effective in allowing the employee to return to work. An employer is not required to provide an indefinite leave of absence.12
Employers should not automatically terminate employees the exhaustion of CFRA and/or FMLA leaves of absence for the employee’s own injury or illness. Initiate the interactive process and work with the employee and the employee's health care provider in in an attempt to agree on a reasonable accommodation of any continuing disability.
Employees who abuse the leave of absence may be subject to disciplinary action, up to and including termination. For instance, if an employee requests five days of leave to care for a parent who is recovering from surgery, but the employee is seen engaging in other activities that would prevent caring for the ill parent, you may have a reason to terminate the employee.
However, if the employee requested leave to care for a child in the hospital but was actually at home caring for other children while the other parent was at the hospital with the ill child, you would probably not have sufficient reason to terminate the employee. The fact that the employee is entitled to leave and could have cared for the ill child in the hospital is enough to provide the employee protection under CFRA and FMLA.
Employees who violate company policy may also be terminated even if they are on a protected leave. Employees on CFRA or FMLA leave have no greater rights to continued employment than a current employee and can't violate company policy and expect protections.
However, employers should always exercise caution in this regard, because the employee may very well bring a retaliation or interference claim.13
You cannot interfere with an employee’s CFRA/FMLA leave rights.14 You cannot retaliate against an employee who takes family and medical leave. It is important to document any disciplinary or termination action taken against an employee using or returning from family and medical leave.
For example, an employee returns from CFRA and the employer receives numerous complaints from co-workers, supervisors and customers. The employer decides to place the employee on a performance improvement plan. If the plan is based on work-related issues, deficiencies or problems, the employee would find it difficult to claim retaliation for using CFRA.
An employee who is engaged in outside employment during family and medical leave in violation of employer policy may be subject to disciplinary action in certain circumstances. In fact, the California Supreme Court upheld an arbitration decision in favor of an employer that terminated an employee because the employee took on outside employment during CFRA leave, a violation of the company’s policy.15
The case involved a car dealership employee who also owned a family restaurant as a side venture. In 2008, the employee went out on approved CFRA leave for a back injury. The company maintained a policy prohibiting employees from accepting employment with other companies while on CFRA leave, and sent the employee a letter informing him of the policy. He ignored the letter because he felt that it misstated company policy and that it did not apply to him because he was self-employed and not working with another company.
Concerned that the employee was violating company policy by working at the restaurant during his approved leave, the company sent employees to drive by or visit the restaurant. Reports came in that he was seen taking orders, acting as a cashier, sweeping and hanging a sign.
The employee acknowledged that he took orders and handled payments, but claimed they were limited, light-duty tasks approved by his doctor. The company fired the employee for engaging in outside employment while on CFRA leave. He sued, claiming that his right to reinstatement after CFRA leave was violated.
The company argued it was entitled to prevail if it had an “honest belief,” even if mistaken, that the employee was abusing CFRA leave.
Because the facts were so strong supporting the employee’s termination, the state Supreme Court declined to decide whether the honest belief defense applies in California employment law. Instead, the state Supreme Court upheld the decision in favor of the company because the employee was legitimately fired for violating the company’s policy against outside work while on approved leave.
There was “overwhelming evidence” to support that finding and that the employee knew of the company policy against outside employment while on leave:
1. 29 CFR sec. 825.312(b); 2 CCR sec. 11091(b)(2)(E)
2. 2 CCR sec. 11091(b)(2)(F)
3. White v. County of Los Angeles, 225 Cal. App. 4th 690 (2014)
4. 29 CFR sec. 825.313(h)
5. 2 CCR sec. 11091(b)(2)(F)
6. Dudley v. Department of Transportation, 90 Cal. App. 4th 255 (2001)
7. Darby v. Bratch, 287 F.3d 673 (2002)
8. Thomas v. Pearle Vision, 251 F.3d 1132 (2001)
9. 29 CFR sec. 825.216(d)-(e)
10. Sista v. CDC Ixis North America, Inc., 445 F.3d 161 (2nd Cir. 2006)
11. 29 CFR sec. 825.213(a) and (c); 2 CCR sec. 11092(b)(5)
12. 2 CCR sec. 11068(c)
13. Richey v. AutoNation, Inc., 60 Cal.4th 909 (2015)
14. Govt. Code sec. 12945.2(t); 2 CCR secs. 11094(a) and (b)
15. Richey v. AutoNation, Inc., 60 Cal.4th 909 (2015)
16. Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th. Cir. 2001)