(a) If an employee needs intermittent leave or leave on a reduced
leave schedule that is foreseeable based on planned medical treatment
for the employee or a family member, including during a period of
recovery from a serious health condition, 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 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 Sec. 825.601 for special rules applicable to
instructional employees of schools.
(b) 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 leave.
(c) 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) 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) 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/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.
