How FMLA May Affect “No-Fault” Attendance Policies

EmplLaw

Dealing with absenteeism is a major challenge for any employer – causing financial losses and slowdowns. Some business have tried to combat these concerns by instituting “no-fault” attendance policies. In its basic form, such policies assign workers “points” for unexcused absences. When an employee reaches a certain threshold number of points, the employer will fire them.

In theory, no-fault policies are meant to provide an objective means of discouraging absenteeism–giving workers sufficient time off to deal with personal matters–without vesting arbitrary authority in individual managers. That is to say, since employees accrue points whenever they take an unexcused absence, it is not up to the manager to decide whether to grant or deny individual leave requests. This eliminates the possibility of managerial bias favoring or disfavoring certain employees or groups of employees.

On the other hand, no-fault policies must still account for employee rights under various state and federal laws. For example, the Family and Medical Leave Act (FMLA) guarantees a certain number of weeks for unpaid leave for qualified employees. Obviously, an employer cannot assess any “points” against an employee while they are on FMLA-protected leave. And this is where many employers face problems when it comes to no-fault policies.

Labor Department States Employers May Not Discriminate Against FMLA Leave When Enforcing Points System

Some employers have tried to circumvent the problem of violations of the FMLA with no-fault policies by implementing procedures in which employees “accrue” points over a given period of time? Is the employer required to account for legally-protected leave during the accrual period? Or does “the clock stop” while the employee is on leave?

The U.S. Department of Labor recently addressed this subject in a formal opinion letter. The Department’s Wage and Hour Division (WHD) responded to a question from an unidentified individual seeking guidance regarding an employer’s attendance policy. According to this person, the employer in question has a no-fault policy whereby employees “accrue points for tardiness and absences,” which remain on their employment record for the following 12 months of “active service.” The policy does not explicitly define “active service.”

According to the letter’s author, the employer effectively freezes the number of points when an employee takes FMLA-protected leave. So if an employee takes a month of FMLA leave, when they return they have the same amount of points as when they left, even if some or all of those points would have otherwise expired. Apparently, this policy is consistent with how this employer handles other types of leave where points are not accrued.

Under these set of facts, the WHD advised that so long as “employees on equivalent types of leave receive the same treatment,” the employer’s policy does not violate the FMLA. In other words, if an employer counts non-FMLA leave towards an employee’s “active service,” but not FMLA-based leave for purposes of its attendance policy, that would be a problem. According to WHD, the decision to remove “absenteeism points is a reward for working and therefore an employment benefit.” And the FMLA prohibits reducing employment benefits on the basis of taking FMLA leave.

If you are an employer who has questions about how the WHD’s opinion letter might affect your own no-fault attendance policy, you should contact a qualified Florida employment law attorney as soon as possible.

Source:

dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

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