C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart B—Employee Leave Entitlements Under the Family and Medical Leave Act

29 C.F.R. § 825.204

Transfer of an employee to an alternative position during intermittent leave or reduced schedule leave

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(a) Transfer or reassignment. If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered servicemember, including during a period of recovery from one's own serious health condition, a serious health condition of a spouse, parent, son, or daughter, or a serious injury or illness of a covered servicemember, 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 that 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 § 825.601 for special rules applicable to instructional employees of schools.

(b) Compliance. 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 schedule leave.

(c) Equivalent pay and benefits. 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.

(d) Employer limitations. 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) Reinstatement of employee. 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 or 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.

Notes of Decisions
Cited in 20 cases (2 in the last 5 years), 1999–2026 · leading case: Howard v. INOVA Health Care Servs., 302 F. App'x 166 (4th Cir. 2008).
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Howard v. INOVA Health Care Servs., 302 F. App'x 166 (4th Cir. 2008). · cites it 5× “Howard argues that his transfer from a billing position in the Surgical Posting office into a supply distribution tech position in the Unit Management office violated the FMLA because it worked a hardship on *173 him in violation of 29 C.F.R. § 825.204 (d). Under 29 C.F.R. § 825.”
Crystal Hyde v. K. B. Home, Inc., 355 F. App'x 266 (11th Cir. 2009). · cites it 3× “29 C.F.R. § 825.204 (a). A reduction in hours may be accompanied by a reduction in overall pay, however, so long as the hourly rate remains constant.”
Green v. New Balance Athletic Shoe, Inc., 182 F. Supp. 2d 128 (D. Me. 2002). · cites it 3× “See 29 C.F.R. § 825.204 . An employee who elects to take reduced leave may work partial days, or part-time, and the employer may count the remainder of her workday or workweek as FMLA-quali-fying leave.”
Lynn Hoffman v. Prof'l Med Team, a Michigan Corp., 394 F.3d 414 (6th Cir. 2005). “See 29 C.F.R. § 825.204 (a) (providing that an employer may require a recipient of FMLA leave to transfer to an alternative position "[i]f an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment .”
Mendillo v. Prudential Ins. Co. of Am., 156 F. Supp. 3d 317 (D. Conn. 2016). “§ 2612 (b)(2); 29 C.F.R. § 825.204 (a). It is undisputed that, after Ms.”
Carmona v. Sw. Airlines Co., 604 F.3d 848 (5th Cir. 2010). “The language of the statute and the regulations promulgated by the Secretary of Labor provide that an employer may transfer an employee who seeks intermittent leave from a job where attendance is vital to an equivalent position where the employee's periodic absences will be less…”
Summerville v. Esco Co. Ltd. P'ship, 52 F. Supp. 2d 804 (W.D. Mich. 1999). · cites it 2× “” 29 C.F.R. § 825.204 (a). “The alternate position must have equivalent pay and benefits .”
Miller v. Pers.-Touch of Virginia, Inc., 342 F. Supp. 2d 499 (E.D. Va. 2004). “302 (f) (noting that employee must advise employer of reasons why intermittent / reduced leave is necessary and noting that “[t]he employee and employer shall attempt to work out a schedule which meets the employee’s needs without unduly disrupting the employer’s operations”);…”
Carline Smith v. Grand Bank & Trust of Florida, 193 F. App'x 833 (11th Cir. 2006). “Given these facts, Grand Bank did all it was required to do under the FMLA, see 29 C.F.R. § 825.204 , and had Behren investigated the law or the facts, he should have been aware that the complaint had no merit.”
Covey v. Methodist Hosp. of Dyersburg, Inc., 56 F. Supp. 2d 965 (W.D. Tenn. 1999). “” 29 C.F.R. § 825.204 (a); 29 U.S.C. § 2612 (b)(2).”
Ferguson v. Williamson Cnty. Dep't of Emergency Commc'ns, 18 F. Supp. 3d 947 (M.D. Tenn. 2014). · cites it 2× “29 C.F.R. § 825.204 (a). The employer is permitted to 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”.”
Butler v. City of Hoover, Alabama (N.D. Ala. 2020). · cites it 3× “Given Hyde and 29 CFR § 825.204 , the court finds that Butler cannot establish a prima facie case of FMLA retaliation because there was no adverse action.”
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