When you grant an employee's request for PDL, you must guarantee to reinstate the employee to the same position. This guarantee must be put in writing if the employee requests a written guarantee.

Under most circumstances, you must reinstate an employee returning from PDL to the same job that was held before the leave, with no less seniority than the employee had when the PDL began. This includes seniority for the purposes of layoff, recall, promotion, job assignment and seniority related benefits, such as vacation. You must also resume benefits upon the employee’s reinstatement in the same manner and at the same levels as provided when the leave began without any new qualification period, physical exam, etc.

An employee may ask to return to a different job or schedule after PDL. Unless the request is for a reasonable accommodation of a disability, the employee is not entitled to any special consideration for such requests. You can treat the request the same as you would any other employee's request for a change in position or hours.

• If an employee returning from PDL is disabled (whether by pregnancy or an injury or illness unrelated to the pregnancy or childbirth), the employee may be entitled to reasonable accommodation. Engage in the interactive process with the employee to determine what accommodation is needed.

Refusing Reinstatement to the Same Position After PDL

There are very limited circumstances where an employer may not have to reinstate an employee to the same position after PDL.

An employee has no greater right to reinstatement to the same position than if the employee had been continuously employed in the position during PDL. That means it is possible to refuse reinstatement to the same position if the employee would not have been employed in the position due to legitimate business reasons, such as a layoff due to a plant closure, that are unrelated to the employee's PDL or transfer.

If an employee is laid off during PDL or a transfer for a legitimate business reason, your responsibility to continue the PDL or transfer, maintain benefits and reinstate the employee ceases at the time the employee is laid off. However, if you have obligations under a collective bargaining agreement (CBA), the terms of the CBA must be followed.

A layoff can be a legitimate reason not to reinstate an employee, but proving that an employee would have been laid off regardless of whether the employee took PDL may be difficult.

Assuming you meet the legal requirements to be excused from returning employee to the same position, you may still be obligated to return the employee to a comparable position that is available. A position is “available” if it is open on the employee's scheduled return date or within 60 calendar days thereafter; and the employee is qualified for the job or is entitled to the job by company policy, contract or collective bargaining agreement.

You are responsible for providing notice to the employee of available positions. Notice can be in person, by letter, telephone, email or links to postings on your company’s website if there is a section for job openings.

If a comparable position is not available on the employee’s scheduled return to work date, but the employee does return to work during the 60 calendar day period, the time between the scheduled return date and the actual reinstatement date is not counted for purposes of any employee pay or benefit.1

• If you are considering refusing to reinstate an employee after PDL because of a layoff or other reason, consult with legal counsel to make sure you can meet the burden of proof required.
  
  

The following scenarios are not valid reasons to refuse to reinstate an employee after PDL:

• You distributed the duties of an employee on PDL to several other employees and found they could handle the additional work.
• You hired a temporary employee to do the duties of the employee on PDL and found the temporary employee did a better job.
• You found it necessary to lay off one person from the department and because the employee on PDL was already out of the workplace, you selected that employee for the layoff.
• You have heard that the employee is considering not returning to work at the end of the leave.

Reinstating an Employee After More Than Four Months

If an employee is disabled by pregnancy for longer than four months, you must give the employee the same reinstatement rights as you would give any other similarly situated employee taking a disability leave of similar length. For example, if your policy allows reinstatement to other temporarily disabled employees who take a disability leave of six months, you also must allow reinstatement to an employee disabled by pregnancy for six months.

Reinstating an Employee After a Transfer

The same reinstatement rights apply whether an employee takes PDL or is transferred. When the employee’s health care provider certifies that there is no further medical need for a transfer, intermittent leave or reduced work schedule, you must reinstate the employee to the same position held before the transfer, intermittent leave or reduced work schedule.

Requiring a Release Before Returning to Work from PDL

You can require the employee to obtain a “return to work” release from the employee’s health care provider as a condition of the employee’s return to work from PDL. The release should state that the employee is able to resume the original job duties and the date the employee is able to return. You can require a release to work only if you maintain a uniformly applied practice or policy of requiring releases from other employees returning to work after a leave that’s not related to a pregnancy disability.

You can use the Certification of Health Care Provider for Employee Return to Work to obtain this release. Keep the form in the employee’s confidential medical file, separate from the employee’s personnel file.

• Certification of Health Care Provider for Employee Return to Work

1. 2 CCR sec. 11043 (c)