This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#10 – Failing To Return Employees To Vacant Positions For Which They Are Qualified

Even if a disabled employee is unable to return to her own position, an employer’s obligations do not end there. If there is a “comparable” or “lower graded” vacant position for which the employee is qualified and capable of performing with or without accommodation, the employer must offer it to her. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 377 [citing Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).]) Note that the Fair Employment and Housing Act (“FEHA”) does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability. (Ibid. [citing Cal. Code Regs., tit. 2, § 11068, subd. (d)(4)].)

An employer must offer a disabled employee the vacant position without requiring the employee to compete against other employees. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 265 [“[T]o the extent Wells Fargo rejected Jensen for positions for which she was qualified because it had applicants who were more qualified or had seniority, it overlooks that when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration.”]). The onus is on the employer to search its positions and to make the offer (rather than simply telling the employee that she is free to search for vacant positions).

Even if there are currently no vacant positions, but openings are anticipated in the near future, the employer should extend the employee’s leave until that time. (See Nadaf-Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal.App.4th 952, 968 [where employee was terminated after her doctor placed her on a medical leave and extended it seven times, for a total of approximately nine months of leave, and indicated that at the end she would need to return to a different position, summary judgment was improper because “it may have been a reasonable accommodation for Neiman Marcus to extend Nadaf–Rahrov’s leave of absence for a limited period of time until a position became available that Nadaf–Rahrov could perform, particularly if Neiman Marcus could have anticipated the future opening”].)

Conclusion

It is not easy to navigate the various leave laws that protect California employees and, as a result, employees’ leave rights are violated far too often.

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This series was adapted from Ramit Mizrahi’s article in The Advocate Magazine, “Ten Ways That Employers Deny Employees Their Medical Leave Rights (June 2017).

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