Question

We are a small company of 22 employees, and we currently have an employee on intermittent leave under the PFML (Paid Family and Medical Leave Act). The absences are unscheduled, as she is approved to take time off when her medical condition flares up, and they usually last from half a day to about two days.  We have found that the unexpected absences are taking a toll on the company, as there are many days when her absence stalls the work of others.  We have a similar position open that we believe will be less affected by these absences. Can we transfer her to this role during her intermittent leave?

Answer

The PFML law and regulations do not specifically prohibit transferring an employee to better accommodate their leave. To clarify, we contacted the Department of Family and Medical Leave (DFML). While the DFML does not provide legal interpretations, they pointed us to a regulation (458 CMR 2.16 (3)) which may be interpreted as allowing transfers:

An employee who is approved for intermittent leave benefits must work with the employer to make an effort to take leave so as not to unduly disrupt the employer’s operation.

Read the full PFML regulation.

This language does not explicitly permit reassignment to a new position but emphasizes the employee’s responsibility to collaborate with the employer to minimize disruption. Given your company’s small size and the negative impact the leave has had on her current position, it seems likely that you may consider a transfer.

Ideally, the employee will accept the reassignment without issue. However, if she objects, you may have to enforce the transfer despite her objections.

The PFML law includes a very strong anti-retaliation provision, which creates a presumption of retaliation if the employee suffers “[a]ny negative change in the seniority, status, employment benefits, pay or other terms or conditions of employment” during leave and for six months following a PFML leave. Refer to section 2.16 (3) of the DFML regulations.

The transfer might be viewed as a negative change, so document all communications about the leave and any evidence of the need for the transfer, such as business disruption caused by her absences.  If the transfer is challenged, you must demonstrate that the transfer was based on business needs, not retaliation for taking leave.

The DFML website reminds employers that leave administrators may need to update their contact information. Ensure that your leave administrator’s contact details are current.

AIM members with questions about PFML, intermittent leave, or any HR matter can call the AIM HR Helpline at 800-470-6277 or email helpline@aimnet.org. For help updating your handbook or other leave administration support, visit www.AIMHRSolutions.com.