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“No-Fault” Attendance Policies and Roll-Off Attendance Points under the FMLA

By Rex P. Fennessey - McMahon Berger, PC

September 5, 2018

It is a question that often plagues Human Resources Departments: To what extent do company policies regarding attendance apply to employees on protected leave?  Most employers understand that they cannot count Family and Medical Leave Act (FMLA) qualifying absences against the employee under an attendance policy.  But the answer is not always clear when it comes to other issues like accruing future leave or dealing with past-absences.  The U.S. Department of Labor’s Wage and Hour Division provided guidance on one such issue in a recent opinion letter: FMLA2018-1-A. https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The employer seeking guidance in the Opinion Letter has a “no-fault” attendance policy in which employees accrue points for tardiness or absences (except vacation, FMLA-protected leave, absences due to on-the-job injuries, etc.).  If an employee accrues 18 attendance points, the employee is automatically discharged under the policy. However, the employer’s policy provides that attendance points “roll-off” 12 months of “active service” after their accrual.  The issue addressed by the opinion letter was: Would it violate the FMLA if, during FMLA-protected leave, attendance points were “frozen” such that the employee returned from FMLA leave with the same number of points they had when the leave began?

The Department of Labor’s answer was a qualified “No.”  The Department reasoned that the FMLA does not entitle employees to superior benefits or position simply because they took FMLA leave, and noted that employees are not entitled to accrue additional benefits or seniority during unpaid FMLA leave.  The Department considered the removal of absenteeism points as a “reward for working and therefore an employment benefit under the FMLA.”  Thus, so long as similar kinds of leave resulted in attendance points being frozen during such leave, it found the FMLA is not violated when past attendance points are frozen during FMLA-protected leave.

Policies that freeze attendance points during FMLA-qualifying leave can be a valuable tool in controlling frequent absenteeism.  However, as the opinion letter makes clear, those policies must be carefully drafted to ensure that they do not improperly discriminate against FMLA leave. The opinion letter indicates that, if the employer’s policy froze attendance only for employees on FMLA leave and not other similar kinds of leave, such a policy would violate the FMLA.

An employer who adopts a policy like the one discussed in the opinion letter should consider how to accurately track the “freeze.”  When an employee uses FMLA in blocks (e.g. 12 weeks at a time), the tracking is relatively simple.  But, as most employers know from experience, FMLA is not always taken in blocks. An employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave.  For most employers, this means that leave can be taken in increments of a day, or even hours.  Tracking a “freeze” in leave for such small amounts of time may create a significant administrative burden. But when it comes to controlling absenteeism, it may well be a burden worth bearing.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including advising on FMLA compliant policies, for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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