Does your attendance policy violate the FMLA?
If it denies reduction of points due to leave, it might
Jeremy was one of the many employees that needed unforeseeable intermittent leave, for him because of migraines. The company had a no-fault attendance policy that assessed points for certain absences. If an employee accumulated 11 or more points, he or she was terminated. Some reasons for absences, including FMLA leave, were excluded from the point system. Therefore, Jeremy did not have points assessed for his FMLA leave.
The attendance policy also allowed employees to reduce the number of points by one for every 30 days of perfect attendance. The policy considered time off for vacations, bereavement, jury duty, holidays, and other absences as hours worked, so taking such time off did not stop or reset the 30-day clock. The policy did not, however, include FMLA leave in the point reduction benefit.
Jeremy accumulated 12 points under the policy and was terminated. In response, he sued arguing that the company interfered with his FMLA rights because each time he used intermittent FMLA leave, the 30-day perfect attendance clock was impermissibly interrupted and reset, interfering with his ability to reduce accumulated points under the attendance policy. If the company treated his FMLA leave the same as the other excluded types of absences, he would have fewer points on his attendance record and he would not have been terminated.
The employer argued that the policy did not interfere with FMLA rights, it treated FMLA leave the same as equivalent non-FMLA leave for purposes of its attendance point reduction schedule. Until an employee reached the 30-day mark, he has accrued no benefit — benefit being the actual reduction of an absence point — so there can be no benefit to be restored upon returning.
The court indicated that attaching negative consequences to the exercise of protected rights surely tends to chill an employee’s willingness to exercise FMLA rights; Jeremy’s ability to remain employed hinged on his not taking FMLA leave. The court also opined that the point reduction could be viewed as an employment benefit, the accrual of which, like the accrual of other benefits or seniority, must be available to an employee upon return from leave.
In two separate opinion letters, the most recent of which was issued in August 2018, the Department of Labor (DOL) applied the FMLA regulations to no-fault attendance and point-reduction policies and stated that accrual toward point reduction must, at the very least, be frozen during FMLA leave. In its 1999 opinion letter, the DPL indicated that an employer’s FMLA obligation to restore an employee to the same or equivalent position includes the obligation to restore the number of days accrued toward absentee point reduction.
If your company has an attendance point policy, ensure that it does not assess points for FMLA leave, and if it also includes an attendance point reduction provision, make sure it includes FMLA leave as hours worked, and does not stop the reduction clock.
Dyer v. Ventra Sandusky, LLC, Sixth Circuit Court of Appeals, No. 18-3802, August 8, 2019
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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