FMLA & reduced work schedule

Murph

I have an employee who is (and has always been)
salaried at 40+ hours per week. She is adjusting her schedule to 30 hours per week under FMLA to care for an ill child during each weekday afternoon. Can I legally switch her status to part-time hourly, and remove her life and vacation benefits while she is working the reduced schedule? There seems to be some confusion about
the legality of changing her status from what it was prior to the FMLA request. This is the first FMLA case we have encountered. HELP!

WO

I note that your message speaks only to the request of FMLA leave. My employer requires concurrent use of sick and vacation leave along with FML. Therefore we implement FML for eligible absences. What is your opinion on the employer designating leave as FMLA? Most of our employees don't know enough about FMLA to request it. We also have very generous leave policies.

houspinner

You are required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. This doesn't apply to life insurance. However, you have to restore and employee, upon return from FMLA leave, to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

houspinner

: If an employee needs intermittent leave or leave on a reduced leave schedule 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.

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.
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 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.
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.

HR Guy

My desire on this particular situation would be to classify this as a "reduced schedule leave" (FMLA)and to allow the individual the time off to care for the ill child. My understanding is that you can change the FLSA status to "non-exempt", and pay the person at the same rate of pay as she was as an exempt employee prior to the request. I would not eliminate any benefits (life insurance) to this person which are not otherwise provided to part time employees, just because she is requesting a reduced schedule under the FMLA. I do think however, that it would be o.k. to eliminate or reduce "earned" benefits (i.e.- vacation) if such a redusction is customary with part time status. I would require medical certification to confirm the "serious health condition" of the child and then begin to track the 10 hours/week as FMLA time. Unfortunately, this will eat up a significant amount of the year to reach the 12 week limit. I would also explain to the individual that this is not a "permnanent" arrangement -- but that you are doing your best to accomidate her situation and provide her coverage under the FMLA (this will protect against the impression you've "created" a position). Remember, on an intermittant/reduced leave rquest, you may transfer an employee to a different position and the duties do not have to be similar, only the pay and benefits must remain the same. This may be something to consider if you find yourself dealing with this months down the road.