Bob is your receptionist, and he’s been a great asset to you for many years. He is the first one in the office every day, making sure coffee is ready for employees and clients alike. He greets clients with his warm smile, directs vendors to the appropriate department, and keeps the front office looking clean and welcoming. Bob has requested intermittent Family and Medical Leave Act (“FMLA”) leave to care for his father who needs help on a sporadic basis when his arthritis flares up. Bob will not know until he gets up in the morning whether his father will be having a good day or a bad day. You know that it’s going to be extremely difficult to find someone at the last minute to get into the office first thing in the morning.
You think you have a simple solution to the problem. Lani works in the file room going through old records, destroying some and scanning others into the new computer system. Lani can take over the front desk, and Bob can work in the file room. Both jobs pay the same, so there’s no problem there. If Bob has to be gone on short notice, the document project can wait. Easy.
Unfortunately, easy is not always legal – and legal is not always logical. According to the FMLA, an employer can transfer an employee to a position with equivalent pay and benefits that is more amenable to intermittent leave that “is foreseeable based on planned medical treatment.” (29 U.S.C. § 2612(c)). This means that you can transfer Bob if he needs time off every Thursday to take his father to treatment, but you cannot transfer Bob if he needs unpredictable time off. As the Association of American Railroads pointed out when arguing for a change in the applicable regulation, “[The] unforeseeable use of intermittent leave is, if anything, a more appropriate circumstance for transfer or reassignment because unforeseeable absences may undermine the employer’s ability to carry out its business.”
Despite this compelling, and fairly obvious, argument, the Department of Labor refused to include an expansion of the right to transfer employees needing intermittent leave when it overhauled the FMLA regulations five years ago. The DOL determined that such an expansion was beyond the scope of its authority given the limiting language contained in the FMLA itself.
The limited right to transfer employees needing intermittent FMLA leave has been the law since the enactment of the FMLA in 1993 and was reinforced with the issuance of revised regulations in 2008. Yet, I still encounter people who use transfers as a way to manage the difficulties posed by unpredictable absences. There are ways to manage (or at least muddle through) sporadic FMLA leave, but employers must be careful when exercising the right to transfer the employee.