§ 825.204 Transfer of an employee to an alternative position during intermittent leave or reduced schedule leave.
(a)Transfer or reassignment. 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. See§ 825.601 for special rules applicable to instructional employees of schools.
(b)Compliance. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, Federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced schedule leave.
(c)Equivalent pay and benefits. The alternative position must have equivalent pay and benefits. An alternative position for these purposes does not have to have equivalent duties. The employer may increase the pay and benefits of an existing alternative position, so as to make them equivalent to the pay and benefits of the employee's regular job. The employer may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary. For example, an employee desiring to take leave in increments of four hours per day could be transferred to a half-time job, or could remain in the employee's same job on a part-time schedule, paying the same hourly rate as the employee's previous job and enjoying the same benefits. The employer may not eliminate benefits which otherwise would not be provided to part-time employees; however, an 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.
(d)Employer limitations. An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. 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. Any such attempt on the part of the employer to make such a transfer will be held to be contrary to the prohibited acts of the FMLA.
(e)Reinstatement of employee. When an employee who is taking leave intermittently or on a reduced leave schedule and has been transferred to an alternative position no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced. An employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave.
Employers, has this ever happened to you?
An employee in a critical-but-inflexible position -- say, a customer service representative -- asks for "intermittent" leave under the Family and Medical Leave Act. If the intermittent time off is "scheduled," it's usually not too big a problem. Most employers can manage to work around a situation if they know what to expect. They may be able to hire a part-time temp to cover the times that the employee will be out, or even juggle duties to get the necessary back-up from existing staff.
Of course, those are the situations that clients never call me about. The ones I hear about are those where the employee doesn't know when he or she will need to be off. The employee (or family member) may have a chronic condition that flares up unpredictably. (Or "conveniently," you might say if you're a cynic.)
"Hey, boss -- all this multitasking has given me a migraine. My doctor says I'll need Fridays and Mondays off from now on!"
Where the absences are unpredictable, it's impossible for the employer to plan, and because the employee's position is critical, there is no way to "let things slide" until the employee is able to come back.
One seemingly logical solution to this problem is to say to the employee, "Look, we recognize your need for FMLA leave, but we really can't handle frequent unpredictable absences in your position. So here's what we'll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We'll leave your pay and benefits unchanged. Then, when you're able to come back to your old job and attend on a regular, predictable basis, we'll put you back in that position."
"Sounds great -- thank you! What's the new job?"
"Uh, men's room attendant. It's a non-essential position, so it will be immaterial to us whether you ever show up for work or not."
This rubs employee the wrong way, especially since she's a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the "temporary reassignment" option applies only if the leave is foreseeable.
"Zelda, here is your temporary office. Welcome aboard!"
A better solution?
OK, forget option 1. How about option 2: "Look, we recognize your need for FMLA leave, but we really can't handle frequent unpredictable absences in your position. So here's what we'll do. We'll have you take 'block' FMLA leave even though you really need it only intermittently. If you take it all at once, we can hire a temporary to fill in for you, and you can relax and take all the time you need when your asthma flares up on Fridays and Mondays."
"But I don't want to use up all my FMLA leave when I really only need it for Fridays and Mondays -- er -- I mean, when I really only need it when my asthma flares up."
"That's what we're willing to do. Take it or leave it."
This rubs employee the wrong way. Employee goes to Department of Labor and files a complaint. Do you win or lose?
The DOL says you lose, but a few courts have disagreed . . . or have they? In one case, the U.S. Court of Appeals for the Eighth Circuit* said that an employee cannot have a valid FMLA "interference" claim unless the employer actually denies leave to which the employee was entitled. The judge in the second case disagreed, but because she was in the Eighth Circuit state of South Dakota, she was required to follow the Eighth Circuit. The third case, from Ohio (which is in the Sixth Circuit**), involved an employee who was required to take FMLA "block" leave because she didn't qualify for light duty under the terms of the employer's policies. Arguably, this is not the same as a situation where an employer requires an employee to take "block" leave to suit its scheduling needs.
*The U.S. Court of Appeals for the Eighth Circuit hears appeals from federal courts in the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
**The U.S. Court of Appeals for the Sixth Circuit hears appeals from federal courts in the states of Kentucky, Michigan, Ohio, and Tennessee.
A recent decision from a federal court in Texas*** is more in line with the DOL position, and I'm not sure it really conflicts with these other decisions. The judge in Texas found that requiring the employee to take leave in a "block" when she didn't want to or need to, coupled with other evidence of FMLA-based discrimination, was unlawful "interference" with the employee's FMLA rights.
***Texas is in the Fifth Circuit, which also includes federal courts from the states of Louisiana and Mississippi.
The Texas case involved a critical-but-flexible position (an account executive who was allowed to telecommute), and a legitimate, bona fide "serious health condition": the employee's husband had terminal cancer. His chemotherapy appointments were on Mondays and Fridays, but presumably this was not an excuse to allow the employee (let's call her "Patti," since that is her real name) to skip out on work. Patti's husband died from his cancer, and about six weeks after Patti returned to work, she was put on a Performance Improvement Plan to improve her "sense of urgency," and even though the employer's policy called for a 90-day PIP period, she was fired less than two months later. She also allegedly caught grief for asking to take some paid time off to attend her son's sporting event. You know, that boy who'd just lost his dad to terminal cancer. (In case you were wondering, Patti still had plenty of paid time off available at the time.)
"Build a bridge and get over it, honey!"
So, some pretty sympathetic facts for Patti. The case was decided at the summary judgment stage, meaning that the judge had to view the facts in the light most favorable to Patti. Patti will get a trial on her claims, and the ex-employer will be able to present its side of the story at that stage. A jury could ultimately side with with Patti or the employer.
You can read the rest of the allegations in the decision -- Patti also has a claim of FMLA retaliation and one for Title VII retaliation because she complained about the way the employer treated women (also, an age discrimination claim that was dismissed) -- but I want to get back to this issue about requiring an employee to take "block" FMLA leave when the employee doesn't need it.
IS there a solution?
The DOL regulations say you can't do this. When I have a client who is really desperate, I will suggest (even though the regs don't specifically authorize it) requiring the employee to take "block" leave but counting only the "necessary" time against the employee's 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers' comp, or just regular pay ("Hey -- you said you were in dire straits!"), and it cannot be counted against the employee for FMLA or attendance purposes.
I don't know whether anyone has ever taken me up on this suggestion because, once I suggest it, I never hear about it again. I assume the employers have decided it's easier to deal with the unpredictable intermittent absences.
So, what can you do when you have an employee in a critical-but-inflexible position who needs interimittent, unpredictable FMLA leave? Not a heck of a lot, unfortunately.
*If you are in the Eighth Circuit, you can try requiring the employee to take "block" FMLA leave instead. As I said, I'm not sure the Eighth Circuit really authorizes this. If you're wrong, then you're in for it. Reinstatement, back pay and benefits, liquidated damages (possibly), and attorneys' fees.
*If you are anywhere else, you can do likewise and claim that the U.S. Court of Appeals for the Eighth Circuit is on your side. If you're wrong -- well, you know (see previous bullet).
*You can try my harebrained idea that no one seems to like. (See above.)
*You can tough it out, and let the employee have the leave on the terms on which she has requested it.
I'm not saying that any of these are good options. I don't think they are. An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I'm not going to hold my breath.
Image credits: Wikimedia Commons. (Statue is Angel of Grief (1894) at graves of sculptor William Wetmore Story and his wife in Protestant Cemetery, Rome, Italy.)