[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR825.204]

[Page 808-809]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents
 
 Subpart B_What Leave Is an Employee Entitled to Take Under the Family 
                         and Medical Leave Act?
 
Sec. 825.204  May an employer transfer an employee to an ``alternative 

position'' in order to accommodate intermittent leave or a reduced 
leave schedule?

    (a) If an employee needs intermittent leave or leave on a reduced 
leave schedule that is foreseeable based on planned medical treatment 
for the employee or a family member, including during a period of 
recovery from a serious health condition, or if the employer agrees to 
permit intermittent or reduced schedule leave for the birth of a child 
or for placement of a child for adoption or foster care, the employer 
may require the employee to transfer temporarily, during the period the 
intermittent or reduced leave schedule is required, to an available 
alternative position for which the employee is qualified and which 
better accommodates recurring periods of leave than does the employee's 
regular position. See Sec. 825.601 for special rules applicable to 
instructional employees of schools.
    (b) Transfer to an alternative position may require compliance with 
any applicable collective bargaining agreement, federal law (such as the 
Americans with Disabilities Act), and State law. Transfer to an 
alternative position may include altering an existing job to better 
accommodate the employee's need for intermittent or reduced leave.
    (c) The alternative position must have equivalent pay and benefits. 
An alternative position for these purposes does not have to have 
equivalent duties. The employer may increase the pay and benefits of an 
existing alternative position, so as to make them equivalent to the pay 
and benefits of the employee's regular job. The employer may also 
transfer the employee to a part-time job with the same hourly rate of 
pay and benefits, provided the employee is not required to take

[[Page 809]]

more leave than is medically necessary. For example, an employee 
desiring to take leave in increments of four hours per day could be 
transferred to a half-time job, or could remain in the employee's same 
job on a part-time schedule, paying the same hourly rate as the 
employee's previous job and enjoying the same benefits. The employer may 
not eliminate benefits which otherwise would not be provided to part-
time employees; however, an employer may proportionately reduce benefits 
such as vacation leave where an employer's normal practice is to base 
such benefits on the number of hours worked.
    (d) An employer may not transfer the employee to an alternative 
position in order to discourage the employee from taking leave or 
otherwise work a hardship on the employee. For example, a white collar 
employee may not be assigned to perform laborer's work; an employee 
working the day shift may not be reassigned to the graveyard shift; an 
employee working in the headquarters facility may not be reassigned to a 
branch a significant distance away from the employee's normal job 
location. Any such attempt on the part of the employer to make such a 
transfer will be held to be contrary to the prohibited acts of the FMLA.
    (e) When an employee who is taking leave intermittently or on a 
reduced leave schedule and has been transferred to an alternative 
position, no longer needs to continue on leave and is able to return to 
full-time work, the employee must be placed in the same or equivalent 
job as the job he/she left when the leave commenced. An employee may not 
be required to take more leave than necessary to address the 
circumstance that precipitated the need for leave.