Tip Eight: Transfer the Employee
–Transfer the employee to a position where absences are less disruptive.
The law permits this, as long as pay and benefits remain equivalent to the previous job.
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Practical HR Tips, News & Advice. Updated Daily.
The law permits this, as long as pay and benefits remain equivalent to the previous job.
I work at a hospital and we have some nurses working weekend option, which basically means that they are working Friday – Sunday or Saturday – Monday. To entice individuals to work these days, we offer a substantially higher rate of pay. The question arose about possibly removing one of the employees due to FMLA absences from the weekend option program. This would result in a decrease in her compensation to “normal” levels. The law permits an employer to do this, but the tip says “as long as pay and benefits remain equivalent to the previous job.” I consider this similar to a shift differential for working evenings or nights and if they aren’t working during these times we of course don’t have to pay the differential. We do have the employees sign acknowledging that if they leave the weekend option program their salary will be decreased. Are there any concerns with this approach/handling that could violate FMLA?
The FMLA specifically prohibits any employer from interfering, restraining or denying the exercise of any right provided by the FMLA. In the situation you describe, removing an employee from a favored weekend scheduling option because of his/her use of FMLA leave and without ensuring equivalent pay and benefits (as required by FMLA) would most likely be viewed as a violation of the FMLA’s nondiscrimination provision.
Temporary transfer: During a period when intermittent or reduced leave schedule is required, an employer may require an employee to transfer temporarily 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. Unlike a “light duty” assignment, a transfer to an alternative position does not require the employee’s consent.
Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced schedule leave. The employer may require a temporary transfer 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, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, adoption, or foster care.
Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the ADA), and state law.
Duties and benefits during transfer: The alternative position must have equivalent pay and benefits, but 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.
So, assuming that the weekend option position would be considered the employee’s “regular” job, and that the employee is being removed from the weekend option program because of his/her use of intermittent or reduced schedule FMLA leave, the employer may remove him/her from the weekend option, but must provide equivalent pay and benefits. To do so, the employer would have to increase the pay of an existing alternative position, so as to make them equivalent to the pay and benefits of the employee’s regular job.