DOL Issues New Opinion Letter on No-Fault Attendance Policy and FMLA Leave

09.03.18

An employer petitioned the DOL to determine whether its no-fault attendance policy violated the FMLA. Under the policy, employees accrue points for most tardiness and absences. Employees do not, however, accrue points for tardiness and absences related to the FMLA, workers' compensation, vacation, and other specified reasons. Employees are terminated if they reach eighteen points under the policy.

Points remain on the employee's record for twelve months of "active service" after they are accrued. The policy does not define the term "active service," but points are extended for the duration of an employee's FMLA leave. In other words, the policy effectively freezes the number of points at the time leave starts; the employee does not accrue additional points during those absences, but points also do not expire during the duration of FMLA leave even if the twelve-month period lapses during that time. Thus, an employee returns from FMLA leave with the same number of points that he or she had accrued prior to taking leave, and some points may remain on the employee's record for more than twelve months. The same is true for other types of leave for which employees do not accrue points, including workers' compensation leave and vacation time.

Under the FMLA, employees cannot accrue points for FMLA-related absences under employers' no-fault attendance policies. But the FMLA does not entitle an employee to superior benefits or position simply because he or she took FMLA leave.

The DOL determined that the employer's policy in this instance did not violate the FMLA. Even though the number of accrued points remains frozen during a period of FMLA leave (sometimes resulting in those points being on the employee's record for more than twelve months), employees on equivalent types of leave receive the same treatment (such as those on workers' compensation leave or extended vacations).

The DOL emphasized that if the employer treated FMLA absences differently in that respect and considered other types of leave as "active service" (meaning that leave counted towards the twelve months necessary to remove points from the employee's record), however, then the employer would be unlawfully discriminating against employees who took FMLA leave and therefore violating the law. This is a great reminder to employers to make sure they treat FMLA leave consistently with other types of leave in order to avoid running afoul of the law.

By Rebecca D. Bullard, rbullard@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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