Vacation Thread: It’s another FMLA warning about your dookie ‘no-fault’ attendance policy

(Not pictured: Eric Meyer; probably off grabbing a Dole Whip (adult version) and a turkey leg).

Folks, the blog posts may not be as fast and furious (i.e., daily) as usual this week. That’s because, yes, I am vacationing with the family in Disney World.

If any burglar is reading this, well, “NERD!”

But, I’ll try to pump out a few posts between Space Mountain and the Country Bear Jamboree.

For example, here is a recent sixth circuit opinion involving an attendance policy that included a point system. Here’s how it worked:

• Employees do not have to justify an absence by presenting a doctor note
• Absences are work 0.5 to 1.5 depending on the circumstances
• Absences for leave under the Family and Medical Leave Act (FMLA) do not accrue points.
• Progressive discipline is imposed at various thresholds along the point system, and once an employee accumulates 11 or more points, he is terminated.
• 1 full point reduction for each rolling 30-day perfect-attendance period.
• Vacations, Bereavement, Jury Duty, Military Duty, Union Leave and Holidays will count toward the 30 days all other excused absences (including FMLA) will not be included.

Does this ‘no fault’ attendance policy violate the FMLA?

The lower court said no. The Sixht Circuit Court of appeals disagreed:

The plain language of the FMLA is clear. At the expiration of the employee’s leave period, she must be reinstated to her position or to a position equivalent in pay, benefits, and other terms and conditions of employment.” Therefore, denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave. Put differently, attaching negative consequences to the exercise of protected rights surely `tends to chill’ an employee’s willingness to exercise those rights. Resetting [the] perfect-attendance clock every time [an employee takes] FMLA leave effectively denie[s] the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed.

Consequently, a policy like this one prejudices employees taking FMLA because their ability to remain employed may hinge on not taking FMLA leave (as opposed to other forms of leave).

While you don’t have to place employees who take FMLA on a pedestal, if you have one of these ‘no fault’ attendance policies please make sure that it doesn’t effectively penalize employees for taking leave under the FMLA.