Jackson Kelly PLLC

Labor & Employment News Alert


August 30, 2018

By: David R. Stone

This week, the Department of Labor issued a new opinion letter regarding the Family and Medical Leave Act of 1993 (FMLA).  The letter provides important guidance to employers who maintain a no-fault attendance policy and serves as a reminder that FMLA leave must be considered similar to that of other types of leave when reducing points assigned to employees.


The Opinion Letter (FMLA2018-1-A) addresses an employer’s “No-Fault” attendance policy.  Under the policy at issue, employees are assessed points for tardiness and absences.  Employees are automatically discharged if they obtain a certain number of points in a given amount of time.  Points are removed from an employee’s record after 12 months of “active service,” a term that is not defined in the policy.  Employees are not assigned points for certain absences, such as FMLA-protected absences, vacation, or other reasons such as workers’ compensation absences.  During an FMLA absence, however, an employee’s point total is frozen, thus it is possible that an employee who has taken FMLA leave may have points on their record for longer than 12 months.  The Opinion Letter addressed whether this practice violates FMLA.


According to the Department of Labor, this practice does not violate FMLA, so long as it is applied equally to different types of leave.  As the Opinion Letter explained, “[r]emoval of absenteeism points is a reward for working and therefore an independent benefit under the FMLA.”  Freezing an employee’s point total during an absence thus does not cause the employee to lose a benefit to which the employee would otherwise be entitled. 


However, this decision hinges on the employer’s definition of “active service,” a term this particular policy did not define.  As the DOL explained, if an employee on some other type of leave that is equivalent to FMLA leave is considered to be on “active service,” such that they are able to remove points from their record, employees on FMLA leave must be granted the same privilege.


This opinion letter is consistent with recent holdings on the topic.  In Dyer v. Ventra Sandusky, LLC, --- F. Supp. 3d ----, 2018 WL 3729123 (N.D. Ohio 2018), the court granted summary judgment in favor of an employer who terminated an employee pursuant to its no-fault attendance policy.  Under that employer’s policy, there are 11 categories of excused absences, including FMLA leave, but for unexcused absences, an employee earns between one-half and one-and-a-half points.  An employee is automatically terminated if they more than 11 points.  The plaintiff was a union member, and this policy was included in the applicable collective-bargaining agreement.


An employee may reduce accumulated points with 30 days of perfect attendance.  Perfect attendance included not only days worked, but vacation days, bereavement days, jury duty, military service, union leave, and holidays, which effectively counted as days “worked” under the policy.  FMLA leave, on the other hand, “reset the perfect attendance clock.”  As the court explained, “if an employee worked three days, took the fourth day off for an FMLA qualifying purpose, and returned to work on the fifth, his attendance streak restarted at one day worked, rather than four.”  Id. at *1.  The court also noted that the employer “consistently enforced the policy as written.”  Id.

  Plaintiff, who had taken intermittent FMLA leave, all of which was approved by the employer, was not given points for any FMLA leave.  But, he claims that had he taken vacation days instead of FMLA leave, he would have had his point total reduced because he would have had 30 days of perfect attendance and would not have accrued enough points to be terminated. 


Plaintiff claimed that the point-removal process is not a bonus but rather was “a portion of a larger attendance policy” that penalized FMLA leave by restarting the 30-day clock as opposed to allowing that clock to continue running in the event of a vacation day or other leave.  Plaintiff cited a case from the Southern District of Ohio in which the court found an FMLA violation after the employer extended an employee’s attendance improvement plan for an additional period because of the employee’s FMLA leave.  Id. at *6 (citing Schmauch v. Honda of Am. Mfg., 295 F. Supp. 2d 823 (S.D. Ohio 2003)).  That court denied summary judgment in favor of the employer on grounds that a jury may have found that extending the employee’s improvement plan was sufficient to constitute a violation of FMLA.  Id.


The court, citing Seventh and Eighth Circuit cases, found that removal of an attendance point was a benefit, not a bonus.  The court found that, under 29 C.F.R. § 825.215(d)(2), employees are not entitled to “accrue any additional benefits or seniority during unpaid FMLA leave.”  Id.  As the court explained, “[j]ust as ‘[a]n employee does not accrue seniority while being on leave . . . because that is a reward for working,’ he ‘does not accrue absenteeism forgiveness on leave, because that too is a reward for working.’”  Id. (citing Baily v. Pregis Innovative Packaging, Inc., 600 F.3d 748 (7th Cir. 2010)).  Ultimately, the court held that an employer who does not add points to an employee who uses FMLA leave does not violate the law. 


This letter and recent case law should encourage employers with no-fault attendance policies to review those policies and how they are applied.  Employers are not mandated to reduce an employer's attendance point total while the employee is on FMLA leave.  But, employers must be aware that FMLA leave under a no-fault attendance policy must not unfairly penalize an employee for taking FMLA leave.  Importantly, an employer must be sure to enforce its policies consistently as they are written.



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