Migraines, job transfer and the FMLA

Q. Our receptionist has been certified as eligible for intermittent FMLA leave for migraines. When she calls in sick without notice, it really disrupts our workplace; we have to pull someone from another position to cover her duties. Can I transfer her to another position where we can better accommodate her absences?

A. One of the most frequently misunderstood regulations that interpret the FMLA is the one that provides for the transfer to an alternate position that can better accommodate the need for intermittent leave. The regulation actually provides that such a transfer is allowed only where the intermittent leave is foreseeable based on planned medical treatment as opposed to a chronic need for unforeseeable leave.

Whether this limitation was intended or not is unclear—there certainly does not appear to be a rational basis for it. At least one court has upheld the regulation as written, and held that it violates the act to transfer an employee to an alternate position when the employee’s intermittent leave is unforeseeable.

The U.S. Labor Department has been promising revisions to the FMLA regulations for quite some time, and employers have identified intermittent leave as one of the most difficult areas of the FMLA to manage. Let’s hope the Labor Department will address this issue in its revised regulations.