Cal. Code Regs. Tit. 2, § 11041 - Transfer
(a) Transfer -- All
Employers
(1) It is unlawful for an employer
who has a policy, practice, or collective bargaining agreement requiring or
authorizing the transfer of temporarily disabled employees to less strenuous or
hazardous positions or duties for the duration of the disability, including
disabilities or conditions resulting from on-the-job injuries, to fail to apply
the policy, practice or collective bargaining agreement to transfer an employee
who is disabled by pregnancy and who so requests.
(2) It is unlawful for an employer to deny
the request of an employee affected by pregnancy to transfer provided that:
(A) The employee's request is based on the
advice of her health care provider that a transfer is medically advisable;
and
(B) Such transfer can be
reasonably accommodated by the employer. To provide a transfer, an employer
need not create additional employment that the employer would not otherwise
have created, discharge another employee, violate the terms of a collective
bargaining agreement, transfer another employee with more seniority, or promote
or transfer any employee who is not qualified to perform the new job. An
employer may accommodate a pregnant employee's transfer request by transferring
another employee, but there is no obligation to do so.
(b) Burden of Proof. The burden shall be on
the employer to prove, by a preponderance of the evidence, that such transfer
cannot be reasonably accommodated for one or more of the enumerated reasons
listed in section
11041(a)(2).
(c) Transfer to Accommodate Intermittent
Leave or a Reduced Work Schedule. If an employee's health care provider
provides medical certification that an employee has a medical need to take
intermittent leave or leave on a reduced work schedule because of pregnancy,
the employer may require the employee to transfer temporarily to an available
alternative position that meets the needs of the employee. The employee must
meet the qualifications of the alternative position. The alternative position
must have the equivalent rate of pay and benefits, and must better accommodate
the employee's leave requirements than her regular job, but does not have to
have equivalent duties.
(d) Right
to Reinstatement after Transfer. When the employee's health care provider
certifies that there is no further medical advisability for the transfer,
intermittent leave, or leave on a reduced work schedule, the employer must
reinstate the employee to her same or comparable position in accordance with
the requirements of section
11043.
Notes
2. Amendment of subsection (d) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945, Government Code; FMLA, 29 U.S.C. § 2601, et seq. and FMLA regulations, 29 C.F.R. § 825.
2. Amendment of subsection (d) filed 12-9-2015; operative
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