(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 Sec. 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.
[73 FR 68088, Nov. 17, 2008]
