Archive for February, 2019

Transfer of an employee to an alternative position during intermittent leave or reduced schedule leave

So for awhile as you all know I had a former summer associate writing these.  Well I ran out of his posts.  So that mean’s I’m writing them again right?   Think again, I have more written by another summer associate.  Her mane is Malaina Weldy.  She is brilliant too.  Enjoy.  Steve.

Imagine with me, for a minute, that you have an employee with an illness, one that falls under the definition of “serious health condition” as discussed (ad nauseam, for some) in previous posts. Because of their illness, the employee plans to take intermittent leave or reduced schedule leave. Obviously, the employee is probably breathing a huge sigh of relief, but as the employer, you may be worried about or uncertain of how to handle the situation. Let’s walk through it.

Under the Family Medical Leave Act (“FMLA”):

  • [T]the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.

29 CFR §825.204(a).

There are, of course, some caveats here (we’re lawyers, we like those). First, if you want to transfer the employee to a different role, the new position must have equivalent pay and benefits. You can’t reduce the employee’s hourly wage simply because the employee is working part time during an FMLA-compliant leave. Yet by the same token, you are not required to transfer the employee to a role with equivalent duties. The employee may simply be stuck, albeit temporarily, with reduced or different job responsibilities.

A second caveat: as an employer, you can’t eliminate an employee’s benefits during an intermittent or reduced schedule leave. For instance, if the employee had health insurance through the company before the employee went on leave, you are not allowed to eliminate those benefits simply because the benefits are not otherwise provided to part-time employees. Yet there are nevertheless aspects of an employee’s benefits that you may proportionately reduce. For instance:

  • [A]n employer may proportionately reduce benefits such as vacation leave where an employer’s normal practice is to base such benefits on the number of hours worked.

29 CFR §825.204(c).

As you can see, these particular rules and regulations regarding the FMLA are generally a mixed bag for employers. Yet the ultimate good news is this: during an intermittent or reduced schedule leave, you have the flexibility to transfer an employee to an alternative position that would better accommodate their new scheduling needs. However, under no circumstances can you transfer an employee to an alternative position in order to discourage that employee (or other employees) from taking intermittent or reduced schedule leave. Any attempt to do so is contrary to the FMLA, and the regulation provides several illustrations of this prohibited behavior:

  • For example, a white collar employee may not be assigned to perform laborer’s work; an employee working the day shift may not be reassigned to the graveyard shift; an employee working in the headquarters facility may not be reassigned to a branch a significant distance away from the employee’s normal job location.

29 CFR §825.204(d).

In sum, as the employer you can require your employee to transfer roles if the employee is taking intermittent or reduced schedule leave, but there are limits as to what that transfer can look like: pay and benefits must be equivalent and the role change can’t be made in order to dissuade the employee from taking the leave. Moreover, once the employee is finally able to return to work after their intermittent or reduced schedule leave, you must allow the employee to return to the same or equivalent job.