Julie R. Pugh & Lee P. Geiger
I was one of those unusual students who actually liked doing homework. Rarely a procrastinator, I tackled the take-home assignments as quickly as possible. My historical study habits kicked in again on August 28, 2018, when the Department of Labor dropped six new Opinion Letters including two on the FMLA. The sun was shining, the birds were singing, and I was happy to be plowing through Mr. Bryan Jarrett’s guidance.
Being a true leave of absence nerd, the two letters addressing the Family Medical Leave Act (FMLA) were my first stop. One letter (FMLA 2018-2-A) was simple and straightforward. An organ donor who is otherwise eligible for FMLA job-protected leave is considered to have a serious health condition under the law. Duly noted (and thank you!).
The second of the FMLA opinion letters addressed no-fault attendance policies. FMLA 2018-1-A. A no-fault policy typically “awards” points to an employee who fails to work as scheduled regardless of the reason. The policy then requires the manager to issue lock-step disciplinary action depending on the number of points the employee accumulated during a specific period of time. Eventually, the employee runs out of points and is terminated due to violation of the attendance policy. The details can run the gamut, but you get the idea.
Usually, an employer who adopts a no-fault attendance policy is heavily cautioned by employment counsel to implement and count those points carefully. Consistency in enforcement is key. This is because historically, no-fault attendance policies have been heavily litigated, with former employees bringing claims that such policies violate the FMLA, ADA, Rehabilitation Act, and state-specific laws (just ask Wal-Mart, Verizon Wireless, UPS, and many others).
The FMLA provides an eligible employee who works for a covered employer with up to twelve weeks of job protected leave during a twelve month period of time. The law also prohibits interference with the employee’s right to the leave, and further contains an anti-discrimination and anti-retaliation provision. The law also states that employers may not use the taking of FMLA leave as a negative factor in any employment action or decision, such as promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. However, the Opinion Letter contains the beautiful language, “The FMLA does not, however, entitle an employee to superior benefits or position simply because he or she took FMLA leave.” Cue the songbirds.
Mr. Jarrett explains that a no-fault attendance policy with a twelve month timeframe for accumulating points can have the points stay on the employee’s record for more than twelve months if all other types of leaves (non-FMLA, workers compensation, or other leave) are treated in the same manner, affirming once again the DOL’s long-standing position on the matter (see FMLA-100).
A conscientious employer will take this guidance and do more homework, such as:
- Review the company’s current attendance policy and its current application.
- Review the company’s FMLA policy.
- Review the company’s “other leave” policies.
- Update one or more of the policies to ensure this issue is specifically addressed.
Finally, do not hesitate to contact your qualified employment counsel. Study groups are fun!
