You Can Transfer Employees on FMLA … Sometimes

Alexis, Of Counsel at the Kinaga Law Firm in Los Angeles, offered his FMLA tips at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas.

Transferring Employees on Intermittent Leave or Reduced Schedule Leave

There are only two situations in which employers may transfer employees to another job that better accommodates their new intermittent schedule, says Alexis:

1. Leave that is foreseeable based on planned medical treatment, including a period of recovery (for example, weekly chemotherapy treatments)
2. If the employer agrees to permit intermittent or reduced schedule leave for bonding.

A common mistake employers make is to transfer employees to another position because leave requested is for treatment “as needed.” Technically, says Alexis, you can’t transfer in this situation; transfer is for foreseeable, planned treatment.

The employer may require the employee to transfer temporarily to an available position when:

• The employee is qualified for the position
• The position better accommodates the recurring periods of leave than the employee’s regular position

However, notes, Alexis, employers still must comply with applicable collective bargaining agreements, other federal and state laws, for example the ADA.

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Other Considerations Around Transferring

• The employer may also temporarily alter an existing job
• Transferees must receive equivalent pay and benefits
• A proportional reduction in benefits is permitted if it is the normal practice to base benefits on hours worked.
• When the need for leave is over, you must return the employee to the same or an equivalent position
• You cannot require the employee to take more leave than the employee needs, for example, while you are trying to figure out what to do to transfer the employee back.

FMLA hassles—they just won’t go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement.  Shell-shocked?

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