Can employers require alternative position instead of granting FMLA leave?

Regulations say eligible employees must be allowed to take leave

Posted October 9, 2015

When Mary requested Family and Medical Leave Act (FMLA) leave for her migraines, the department was already having a hard time meeting its deadlines. Jose, Mary’s supervisor, wondered if he could put Mary in a different position in the department, one without the triggers that contributed to her migraines — an accommodation of a quieter room with softer lighting, stronger air filters, and a place to sit down. That way, she could still contribute to the department’s output instead of taking the leave.

Before talking to Mary, Jose broached the idea with Andrea in HR. If he had it his way, Jose would require Mary to take the alternative position. Providing the accommodations should be a win-win, he thought. Mary would be accommodated and he would keep her at her normal pay and benefits level.

Andrea gave Jose a puzzled look when he asked her. She said she didn’t think the company could force Mary to take an alternative position with accommodations instead of taking FMLA leave, but she would double check.

Andrea kept her word and began researching the FMLA provisions. She was curious whether employers could require a temporarily disabled "eligible employee," who seeks FMLA leave for a serious health condition that makes the employee unable to perform his or her job, to accept an alternative position (with similar pay and benefits) that has been modified to eliminate the essential functions which the employee cannot perform. If so, may an employer deny the requested FMLA leave and require the employee's presence at work in the modified job?

The FMLA regulations are pretty clear on this issue, as they provide that if FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require the employee to take a job with a reasonable accommodation. Thus, an employer could not require an employee to work in a restructured job instead of granting the employee's FMLA leave request.

The FMLA does not, however, prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave, but the employee cannot be induced by the employer to accept a different position against the employee’s wishes.

Andrea knew, however, that she’d read something about alternative positions and the FMLA. As she dug deeper, she found that the FMLA regulations do addresses temporary transfers to alternative positions with equivalent pay and benefits for employees, but the provision is for employees who request foreseeable intermittent leave or leave on a reduced leave schedule for planned medical treatment, including for a period of recovery from a serious health condition. Unfortunately, Mary’s need for leave was not foreseeable nor was it based on planned medical treatment.

Andrea now turned to crafting a response for Jose that would not leave him exasperated. If his department was behind, perhaps she would look into getting him some help.

FMLA Essentials ManualJ. J. Keller's FMLA Essentials Manual uses clear, conversational language to help you understand the FMLA (Family and Medical Leave Act) requirements.


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