Freeze! Put Your Hands Up & Go Review Your Attendance Policy

Beth Ann Lennon

The Sixth Circuit reminds all employers to carefully review even “no fault” attendance policies for FMLA compliance. Dyer v. Ventra Sandusky, LLC.  The employer used a collectively bargained, no-fault, attendance policy that required termination when an employee received eleven or more “points” due to absences.  Employees received points whenever they missed all or part of a scheduled shift.  Employees who had “perfect” attendance for thirty days, on the other hand, had a point subtracted from their total.  Although FMLA-protected absences were expressly excluded from the point-accumulation system, taking such leave reset the “perfect attendance” clock.  According to the Sixth Circuit, and the Department of Labor (DOL), this policy may give rise to an FMLA “interference” claim.

Do you have a policy problem?  The dispositive question when reviewing your own policy is whether the “practical result” of your company’s policy is that “taking FMLA-protected leave . . . [becomes] a negative factor in employment actions.”  For many employers, this will not be news.  As the Sixth Circuit was quick to point out, the DOL has repeatedly explained that “point reduction [under an attendance policy] can be viewed as an employment benefit.”  Thus, if an employer chooses to provide their employees this benefit, FMLA-protected absences cannot “reset” the “perfect attendance” clock.  According to the DOL (and, now, the Sixth Circuit), employers must draft their attendance policies so that FMLA leave “freeze[s] the accrual of attendance.”