Can an employer refuse to reemploy an employee on the basis that another employee was hired to fill the position during the employee's absence?

⁹ Even if she had been replaced, 20 C.F.R. 1002.139 provides that "[t]he employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee's absence, even if reemployment might require the termination of that replacement employee." See also Cole v. Swint, 961 F.2d 58, 60 (5th Cir.1992) ("If mere replacement of the employee would exempt an employer from the Act, its protections would be meaningless.").