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Can we transfer an employee to a different position if the employee needs to take intermittent FMLA/CFRA leave for his medical treatments?
Yes, as discussed below, an employer can transfer an employee to an alternative position during intermittent leave for medical treatments.
Intermittent Leave
Under the federal Family and Medical Act (FMLA) and the California Family Rights Act (CFRA), eligible employees are entitled to take up to 12 weeks of qualifying leave in a 12-month period.
Time off under the FMLA/CFRA does not have to be taken all at once or in a block of time. Leave under the FMLA/CFRA can be taken “intermittently” or on a “reduced work schedule” with some restrictions.
Intermittent leave is used commonly for an employee’s or qualifying family member’s serious health condition and a health care provider may certify leave of weeks, days (or even hours) for therapy or medical treatments.
Transfer to Alternative Position
If an employee anticipates the need for intermittent leave or leave on a reduced work schedule based on planned medical treatment for the employee or a family member, an employer can require the employee to transfer temporarily to an available alternative position. The position must better accommodate recurring periods of leave than the employee’s regular job.
The employee must be qualified for the alternative position, but the job duties can be different than the employee’s regular position. (Code of Federal Regulations, Title 29, Section 825.204 (a)(c); California Code of Regulations, Title 2, Section 11090(e)).
Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent leave or a reduced work schedule and must comply with any applicable collective bargaining agreement or employer leave policy, the Fair Employment and Housing Act, or any other applicable state or federal law. (29 CFR sec. 825.204(b); 2 CCR sec. 11090(e)).
Equivalent Pay/Benefits Required
If an employer transfers an employee to an alternative position to better accommodate recurring periods of leave, the position must offer the equivalent rate of pay and benefits as the employee’s regular position.
An employer may increase the rate of pay and benefits of an alternative position to make them equivalent to the pay and benefits of the employee’s regular job. (29 CFR sec. 825.204(c); 2 CCR sec. 11090(e)).
Prohibited Employer Practices
An employer must not transfer an employee to a different position to discourage the employee from taking leave or to otherwise work a hardship on the employee. (29 CFR sec. 825.204(d); 2 CCR sec. 11090(e)).
Some examples of prohibited practices include (29 CFR sec. 825.204(d)):
- Assigning a white-collar employee to perform a laborer’s work;
- Reassigning a day shift employee to work the graveyard shift;
- Assigning an employee who works at a headquarters facility to work at a facility that is a significant distance away from the employee’s normal job location.
Reinstatement of Employee
Once an employee who has been transferred temporarily to an alternative position no longer needs intermittent leave, the employee must be returned to the same or equivalent job as the job he or she held when the leave started. (29 CFR sec. 825.204(e).)
