When employees take intermittent FMLA leave, it often causes logistical problems for employers. It’s hard to find someone to fill in during just those times when the employee is off.
One solution is to find another position for the employee who’s taking. That way, another employee can temporarily fill her old position on a full-time basis.
To do this right, follow a few simple rules: First, the temp position must pay the same and provide the same benefits as the old one. Second, it must be a position for which the employee is qualified. Finally, transfer to the temporary position must not constitute punishment for the employee’s protected right to take intermittent leave.
As long as you follow those rules, the temporary position can include different duties.
Recent case: Eileen Claffey worked for Wegmans Food Markets as an accounting office trainee. She also was trained to run the cash register. After several months of training, during which Wegmans never allowed trainees to work alone, Claffey applied forto care for a relative.
She told her supervisors when she would be available—not very much, it turned out.
Because Wegmans accounting trainees aren’t allowed to work alone, Wegmans offered to let Claffey work as a cashier on a schedule that fit her needs. She refused and sued, alleging that she was being punished for claiming her right toleave.
The court threw out her case, citing U.S. Department of Labor regulations and opinion letters. It said that a transfer to another position—that the employee is qualified to perform and which offers the same pay and benefits—is perfectly legal unless the temporary transfer creates a hardship for the employee. This transfer did not. (Claffey v. Wegmans Food Markets, No. 07-CV-6430, WD NY, 2010)
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