Q&A: Can we temporarily transfer employees taking FMLA leave?

Question

An employee handles time sensitive documentation and the supervisor never knows when the employee is going to call out using intermittent FMLA leave. The supervisor believes it is causing a hardship to the department and customers. She would like to temporarily transfer her from a backroom lending function to a backroom deposit operation function. The employee has never worked in deposit operations, but the supervisor of that department is willing to train her. Since it is a further drive, she does not think the employee will transfer willingly. The transfer will more than likely not provide any benefit to the employee.

Can the employee temporarily be transferred to a new department?

Answer

In the case of reduced and intermittent FMLA leave, an employer may temporarily move an employee to a different job for the duration of the intermittent or reduced leave if this will allow the employer to better accommodate the need for leave.

The alternative position may be different in duties from the employee’s regular position (even if the duties of the alternative position are inferior to those of the regular position). However, the pay and benefits for the position must be the same as those paid to the employee for their regular position.

An employee transferred to a part-time position to better accommodate a leave must receive the same salary and benefits they receive in the full-time position. However, the employer can proportionately reduce salary and earned benefits (e.g., vacation) when transferring the person to a part-time position.

Benefits such as life insurance, health insurance, and others received by the employee as a full-time worker also would be required to be provided in the part-time position, even though part-time employees, in general, are ineligible for such benefits.

Transferring an employee while on reduced leave is not permissible when it violates any applicable collective bargaining agreement, ADA, or state law. Employers should review any applicable collective bargaining agreement carefully before implementing a transfer and consult with any state laws that might apply to the ADA.

Transfers intended to deter an employee from taking reduced or intermittent leave, or to punish the employee for taking such a leave, are prohibited by the FMLA. Thus, a person employed in a professional capacity cannot be assigned janitorial duties, and a day worker cannot be reassigned to the night shift, for example.

The DOL also makes it clear that an employer may alter an existing job, such as the employee’s own job, in such a way that it better accommodates the need for intermittent or reduced leave. For example, an employer may temporarily reassign certain functions, whether essential or marginal, to lower the number of hours worked by the person.

Once the employee no longer needs to continue taking intermittent or reduced schedule leave, they must be returned to the same or an equivalent job immediately, and may not be required to take more leave than necessary for the health condition (29 C.F.R. §825.204(e)).

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