FMLA and attendance awards, how does that work?

So, glad you asked. I think I can help.

This is from the U.S. Department of Labor, which is the federal agency that enforces the Family and Medical Leave Act:

An employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for a FMLA-qualifying reason.

Now, let’s change the facts a bit, and use the setup from this recent FMLA case:

Plaintiff, as an hourly worker, was a member of his union and familiar with the collective bargaining agreement that governed his employment. Under that agreement, an employee could reduce attendance points by achieving perfect attendance for thirty days. The policy treated time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days “worked” toward that thirty-day count.

It did not, however, count FMLA leave as time “worked” toward the thirty-day perfect attendance streak. While Defendant did not add points for time an employee missed while on FMLA leave, it classified FMLA leave as an event that reset the perfect attendance clock. For example, 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.

The Plaintiff, who took intermittent FMLA for migraines, was eventually fired after accumulating too many attendance points for non-FMLA absences. And, as you may have guessed, the Plaintiff did not get the benefit of a reset of the perfect-attendance clock because of his intermittent-FMLA absences.

So was that FMLA interference? According to the court, no:

The point removal policy is a benefit employees earn for working, and the Act does not entitle employees to “the accrual of any . . . employment benefits during any period of leave.” … Defendant does not impose discipline for FMLA leave. The policy puts an employee’s job in jeopardy only when he accumulates a certain number of points for absences not protected under the Act. And Defendant can legitimately punish employees who violate its attendance policies.

But, wait a minute!

The Defendant treats vacation as days “worked” toward the thirty-days of perfect attendance, but not FMLA days. Isn’t that an issue?

Well, there’s this:

Defendant does not require its employees to use or exhaust vacation time in conjunction with FMLA leave, though it permits employees to do so. Employees using vacation time with leave maintain perfect attendance and avoid an economic loss, since FMLA leave is unpaid. Plaintiff never used vacation time in conjunction with his FMLA leave, and Defendant paid out the fifty-six hours of unused vacation time due to Plaintiff on termination.

In other words, the Court wouldn’t let the Plaintiff has his cake and eat it too. If only he had taken that vacation concurrently with FMLA, maybe he wouldn’t have earned enough attendance points to end up with a pink slip.

The big takeaway with which I want to leave employers is that these types of situations are the exceptions to the rule. That is, generally, factoring FMLA leave into attendance-related employment decisions often ends badly.