What is an employer to do when an employee needs to exercise his or her right to take intermittent leave, as allowed under the Family Medical Leave Act (“FMLA”), particularly when the employee holds a position that is valuable to the organization and/or requires reliable attendance? One solution may be to temporarily transfer the employee to another position.
For those employers who have not heard, employees who are eligible for FMLA leave may need to take leave periodically. This periodic leave time, referred to as “intermittent leave”, is often the most costly form of employee leave, particularly considering that eligible employees may need days off without warning, giving employers little or no time to find an acceptable substitute worker. (Keep in mind, FMLA intermittent leave is not to be confused with a “reasonable accommodation” of time off under the Americans with Disabilities Act. FMLA intermittent leave must be provided to eligible employees, regardless of reasonableness for the employer.)
Generally speaking, federal regulations allow employers to temporarily transfer employees requiring intermittent leave to a position, with equal pay and benefits, including part-time or reduced-schedule work, provided that the employee is not required to take more leave than necessary.
There are a few notable caveats to this general rule:
First of all, the transfer cannot discourage the employee from taking FMLA leave. For example, an employer should avoid transferring a professional employee to a non-professional position, even if the employer provides her with the same pay and benefits.
Secondly, if there is a collective bargaining agreement (“CBA”) or employer policy that gives employees greater rights than the FMLA, the federal regulations require employers to follow the more generous policy/CBA. For example, if the CBA states that employees may not be transferred while on intermittent FMLA leave, the employer must follow the CBA.
Thirdly, school employers may only transfer instructional employees taking intermittent FMLA leave where the instructional employee requires at least 20 percent of the working days during the period over which the leave extends. For example, if an instructional employee who normally works five days each week needs to take two days of FMLA leave per week over a period of several weeks, the school may transfer the employee.
Even for the most experienced managers and human resource professionals, the FMLA can be difficult to implement and mistakes can be costly. If you find yourself confused about an employee’s request for leave time, contact a skilled employment attorney to help you avoid a key area of liability..
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
