California Civil Jury Instructions (CACI)

2612. Affirmative Defense - Employment Would Have Ceased

[Name of defendant] claims that [he/she/it] was not required to allow [name of plaintiff] to return to work when [his/her] [family care/medical] leave was over because [his/her] employment would have ended for other reasons. To succeed, [name of defendant] must prove both of the following:

1. That [name of defendant] would have [discharged/laid off] [name of plaintiff] if [he/she] had continued to work during the leave period; and

2. That [name of plaintiff]'s [family care/medical] leave was not a reason for [discharging [him/her]/laying [him/her] off].

An employee on [family care/medical] leave has no greater right to his or her job or to other employment benefits than if he or she had continued working during the leave.

Sources and Authority

The Fair Employment and Housing Commission's regulations provide: "An employee has no greater right to reinstatement or to other benefits and conditions of employ-ment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny reinstatement. . . . [¶] . . . If an employee is laid off during the course of taking CFRA leave and employment is terminated, the employer's responsibility to continue CFRA leave, maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise." (Cal. Code Regs., tit. 2, § 7297.2(c)(1).)

Secondary Sources

1 Wilcox, California Employment Law (1989) Leaves of Absence, § 8.30[4] (Matthew Bender)

(New September 2003)