Stop And Look Both Ways: Your No-Fault Attendance Policy May Be Creating Risk Under The FMLA

A recent federal case decided in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) is a good reminder for employers covered by the Family Medical Leave Act (“FMLA”) to periodically review their attendance policies to make sure they comply with the FMLA in all respects.

In Dyer v. Ventra Sandusky, No. 18-3802 (Aug. 8, 2019), the plaintiff-employee challenged certain portions of his employer’s no-fault attendance policy, claiming interference with his ability to exercise his FMLA rights.   Under the employer’s policy, points were assessed for absences, depending on whether the employee called in to report the absence and whether the employee was absent for his entire shift or only part of it.  Progressive discipline was imposed at various thresholds along the way.  Certain absences, including any absences taken under the FMLA, were excluded from the point-accumulation system.   So far so good, right?

As you can probably guess, the problem in the case was not about the accumulation of attendance points.  It was about the system for point reduction.  Specifically, employees could reduce the number of accrued absence points if they had perfect attendance during any rolling 30-day period.  Paid time off for vacation, bereavement, jury duty, military duty, union leave and holidays counted as hours worked toward the 30-day perfect attendance requirement.  However, unpaid leave, including FMLA leave, reset the 30-day perfect attendance clock.

So what went wrong?  The plaintiff-employee was terminated for accumulating the termination-level of points.  In court, he claimed that his employer interfered with his FMLA rights because each time he used his approved intermittent FMLA leave (for migraines), the 30-day perfect attendance clock was impermissibly interrupted and reset, interfering with his ability to reduce accumulated points under the attendance policy and ultimately leading to his termination.  The employer, on the other hand, argued there was no interference because the policy treated unpaid FMLA leave the same as equivalent unpaid, non-FMLA leave for purposes of the attendance point reduction schedule, which, it claimed, was permissible under relevant laws and regulations.  The employer prevailed with this argument on summary judgment, but the Sixth Circuit reversed the decision.

The Sixth Circuit analyzed the claim much differently than the employer and the lower court.  It described the relevant inquiry not simply as how FMLA leave is treated vis-à-vis other types of leave, but whether the taking of FMLA-protected leave was used as a negative factor in the employer’s decision to terminate the plaintiff-employee’s employment.  According to the Sixth Circuit, “resetting [the employee’s] perfect attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed.”  It found that the employee was eventually fired due to his inability to achieve “perfect attendance” and thereby reduce his total points.  Therefore, a jury could reasonably find that the employee’s inability to achieve perfect attendance was a negative factor in his employment termination.

Perhaps more interestingly, the Sixth Circuit also reasoned that 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 FMLA leave.  The court reasoned that a reasonable jury could also find that the employer’s policy interfered with the employee’s FMLA rights by not freezing the accrual of perfect attendance during the leave: “A jury could find that, by not resetting [the] 30-day perfect attendance clock after [the employee] returned to work after taking FMLA leave, [the employer] failed to restore his accrued employee benefits as required by the FMLA.”

The Bottom Line for Employers

The interaction between attendance policies, especially no fault attendance policies, and the FMLA is tricky.  Employers should periodically review their attendance policies, both as written and in practice, to ensure that employees who take FMLA-protected leave are not being adversely affected by the policy.  As the Dyer case makes clear, simply protecting employees from adverse action based on taking FMLA leave is not enough.  Employers should also make sure that employees who take FMLA leave are able (i) to take advantage of any mitigating aspects of the attendance policy, like a point-reduction system, and (ii) to access, upon return to work, all benefits accrued at the time FMLA leave began (including any time toward perfect attendance).