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DOL Provides Guidance on No-Fault Attendance Policies in FMLA context

By Kimberly A. Klimczuk - Skoler, Abbott & Presser, P.C.

December 7, 2018

The DOL has issued an opinion letter addressing whether points earned under a “no-fault” attendance policy can stay on an employee’s record while the employee is on FMLA leave even if the points otherwise would have been erased if the employee had been working.  No-fault attendance policies generally provide that employees accrue points for each absence, regardless of the reason for the absence, and employees are disciplined once they reach a certain number of points.

The opinion letter was written in response to an inquiry by an employer whose no-fault attendance policy provided for termination if an employee reached 18 points in any 12-month period.  Points remained on an employee’s record for twelve months of “active service” and would be erased thereafter.

Because points disappeared only after twelve months of active service, employees who took FMLA leave could have points on their record for longer than twelve calendar months.  For example, if a person had 8 points as of the time they took FMLA leave, they would still have 8 points when they returned from leave, even if they returned from leave more than 12 months after accruing their points.  The question was whether this kind of policy would be discriminatory against employees who took FMLA leave.

The DOL explained that removal of absenteeism points is an employment benefit but noted that, with the exception of health insurance benefits, an employee’s entitlement to benefits is “determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave.”  Therefore, a policy that retains attendance points for employees on FMLA is permissible as long as employees who took other types of leave also retained their points pending their leave.

As for any benefit, employers must make sure that employees who take FMLA aren’t treated any worse than employees who take other types of leave.  However, that isn’t the only pitfall of no-fault attendance policies.  One of the advantages of no-fault attendance policies is that they are meant to set a standard for an acceptable level of absenteeism, regardless of the reason for the absence.  However, assessing points for all absences would violate the anti-retaliation provisions of laws that provide protected leave, such as the FMLA or Massachusetts’ Earned Sick Leave law.  In addition, the EEOC has taken the position that no-fault attendance policies that do not make exceptions for employees who may require additional leave as a reasonable accommodation violate the Americans with Disabilities Act.  As a result, employers do have to request the reason for an absence to make sure they are not penalizing employees for taking protected leave.

Employers who wish to maintain a no-fault attendance policy despite these pitfalls should make clear in their written policy that absences taken under the FMLA, ADA, or other leave laws will not accrue points under the policy.  Therefore, employers must request and document the reasons for any tardiness or absence to ensure that only non-protected absences accrue points.  Employers should also ensure that managers and supervisors are trained on how to apply and enforce the attendance policy.  And any attendance-related discipline should specify the absences for which the disciplinary action is being taken to avoid any claim that protected absences played a role in the discipline.

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