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Fourth Circuit Says Transfer from Operating Room to Desk Job Did Not Violate FMLA

    Client Alerts
  • January 09, 2009

Under the Family and Medical Leave Act, an employee returning from leave is entitled to be restored to his or her prior job, or to an “equivalent position.”  In a new unpublished decision, the Fourth Circuit Court of Appeals (which includes North and South Carolina) concluded that an employee’s need for a reduced hours intermittent leave schedule justified his temporary transfer to a job with very different job duties.


In Howard v. Inova Health Systems, the plaintiff worked as a patient coordinator in a hospital operating room.  He was placed on full-time and subsequent intermittent FMLA leave after complaining that he suffered from post-traumatic stress disorder due to his operating room experiences.  He subsequently was injured twice in car accidents, and was eventually transferred by the hospital to a reduced hours white-collar supply job after his various medical problems prevented him from working a full-time job.  He sued the hospital, claiming that the transfer constituted retaliation and interference with his FMLA rights, because he was not placed in an equivalent position after requesting reduced hours intermittent FMLA leave.


The Fourth Circuit affirmed dismissal of the plaintiff’s claim.  The court cited Department of Labor regulations issued under the FMLA which provide that during intermittent leave, the employer may transfer an employee to another job that better accommodates the reduced hours schedule.  The rule does not require that the alternative position have equivalent job duties, as long as the employer maintains the previous salary.  The employee must be returned to an equivalent position once the need for intermittent leave ends.


The Fourth Circuit rejected the plaintiff’s claim that the transfer was made in this case to retaliate against him for requesting FMLA leave.  Despite a DOL investigation’s opposite conclusions, the court found that the transfer was made for business reasons, and to better accommodate the plaintiff.


The DOL rule cited by the Fourth Circuit in Inova only applies to foreseeable intermittent leaves, such as a fixed reduction in working hours.  In its new FMLA regulations, DOL makes clear that employers may not transfer employees who use unscheduled intermittent FMLA leave (i.e., suddenly leaving work due to migraine headaches) to a non-equivalent position.