Of course, FMLA intermittent leave can wreak havoc with work schedules if the employee in question holds a critical job that doesn’t easily accommodate late arrivals, missed days or time off during the shift for medical appointments. Fortunately, the FMLA allows employers to move employees taking intermittent leave to positions that make it easier for the employers.
If you do so, just make sure that the temporary position has equivalent pay and benefits. It does not have to have equivalent duties. Of course, once the employee no longer needs intermittent leave, you must reassign him to his former position or one that is equivalent in duties, pay and benefits.
Recent case: Winfred Howard worked for Inova Healthcare as an operating room technician until he was diagnosed with post-traumatic stress disorder (PTSD) caused by “exposure to blood or bodily fluid or the smell of burning flesh.” He was moved to another position.
Then, several years later, he had a series of auto accidents. He needed time off when he suffered back pain. Inova granted a request for intermittent leave, but then moved Howard from a desk position to one that required him to work in a supply room.
He sued, claiming this was designed to harm his state of mind, since he might see blood in the supply room.
Inova said it was within its rights to move Howard from a job that required someone to be in place full time to one that allowed Howard to take time off when he needed. Plus, it said it hadn’t considered Howard’s PTSD—just his latest certified medical problems—when making the transfer. Inova also pointed out that Howard had different duties, but was paid the same and got the same benefits he had received in his former position.
The 4th Circuit Court of Appeals threw out the case. It reasoned the employer was complying with the relevant intermittent leave regulations and there was no evidence it moved Howard to aggravate his PTSD. (Howard v. Inova Health Care Services, No. 07-1885, 4th Cir., 2008)
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