You are allowed to transfer an employee who is using The Family and Medical Leave Act (FMLA), but only if certain pay and benefit conditions are met. In the latest Compliance Corner video blog, HR Daily Advisor editor Stephen Bruce tells what you need to know.
SB: This is Steve Bruce for the HR Daily Advisor. Today’s question is from Sandy in Chicago. Sandy says:
‘At the hospital where I work, some nurses work weekends only, and they get a substantially higher rate of pay. One of the nurses—Susie—misses days on intermittent FMLA and we’d like to move her to weekdays. I consider this situation similar to a shift differential—if the employee isn’t working the shift, we don’t pay the differential. So we’d lower her compensation to the regular weekday rate. Are there any concerns with this approach?’
Here’s the answer from one of our team of attorneys:
First of all, 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 schedule because of his or her use of FMLA leave without ensuring equivalent pay and benefits (as the FMLA requires) would most likely be viewed as a violation of the FMLA’s nondiscrimination provision.
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.
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, back to Sandy’s case, assuming that the weekend option position would be considered Susie’s “regular” job, and that she is being removed from the weekend option program because of her use of intermittent or reduced schedule FMLA leave, you may remove her from the weekend option, but must provide equivalent pay and benefits. To do so, you’ll have to increase the pay and benefits of the alternative position to make them equivalent to the pay and benefits of the employee’s regular job.
Good luck with all your HR Challenges—this is Steve Bruce for the HR Daily Advisor.
Of course, just because the alternative position has equivalent pay and benefits doesn’t mean a jury will think it was sufficiently comparable to the original position. The California Court of Appeal recently reversed a jury verdict in such a case. The employer ultimately prevailed, but appeals take time and money.