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Can an employer transfer an employee to an alternative position during intermittent or reduced-schedule FMLA leave?

Yes. An employer can transfer an employee to an alternative position during intermittent or reduced schedule leave. FMLA regulation 825.204 applies. Section (a) of this regulation states: 

If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered servicemember, including during a period of recovery from one's own serious health condition, a serious health condition of a spouse, parent, son, or daughter, or a serious injury or illness of a covered servicemember, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care, 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. 

The position into which the employee transfers must have the same pay and benefits as the previous position, although the duties may be different. According to the Fair Labor Standards Act, an exempt employee who qualifies for and takes intermittent leave or a reduced-schedule leave can have his or her salary reduced without jeopardizing exempt status. The transfer must be to an available alternative position for which the employee is qualified and which is better suited for periods of recurring leave. The transfer must comply with any applicable collective bargaining agreement, as well as federal and state laws.

If the alternative position is of lesser pay, then the employer can raise the pay to match the existing pay and benefit level of the employee's regular position. A part-time job is also an option, as long as the employee is not required to take more leave than is medically necessary. For example, if an employee needs to take leave in increments of four hours per day, that employee could be transferred to a half-time job or could remain in the same job on a part-time basis. The employer will still need to pay the same hourly rate and provide the same benefits. However, an employer can reduce the benefits, such as the amount of vacation leave, if it is the employer's normal practice to do so when the number of hours an employee works determines the amount or level of the benefit.

An employer is not allowed to transfer an employee to discourage him or her from taking leave. Practices prohibited by the FMLA include:

  • Assigning a white-collar employee to perform a laborer's work.
  • Requiring an employee who works the day shift to be reassigned to the graveyard shift.
  • Assigning an employee who works at a headquarters facility to a facility that is a significant distance away from headquarters.

When an employee is able to return to full-time work, the employee must be placed in the same or equivalent job as he or she had when the leave started.



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