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Many employers utilize “no-fault” attendance polices, which provide that employees are subject to progressive discipline up to and including termination when they accumulate a specified number of absences within a certain period of time. For example, a no-fault policy might require termination of an employee who accumulates seven days of absence within a rolling twelve-month period. Of course, the Family and Medical Leave Act (FMLA) prohibits an employer from counting approved FMLA leave as an absence subject to adverse action under such policies. The question arises, however, whether the duration of the FMLA leave must be treated as “active service” within the time period that the policy measures absences subject to disciplinary action. On August 28, 2018, the U.S. Department of Labor, Wage and Hour Division, issued an opinion letter addressing this question.

The opinion letter concerns an employer no-fault attendance policy which subjected an employee to automatic discharge if he or she accrued eighteen absences (i.e., “points”) within a twelve-month period. The policy stated that points would remain on an employee’s record for twelve months of “active service” after the points were accrued, although the policy did not define the meaning of “active service.” In practice, the employer effectively “froze” the number of attendance points that the employee had accrued prior to the taking of FMLA leave. Consequently, his or her points accrued prior to leave would remain on the employees attendance record for perhaps more than twelve months, since the period of FMLA leave was not counted by the employer as active service. Significantly, this practice of treating FMLA leave as inactive service under the no-fault attendance policy was also extended to other types of leave such as workers’ compensation related absence.

Based upon the foregoing facts, the Department of Labor concluded that the employer’s no-fault attendance policy did not violate the FMLA. The DOL found that by not counting FMLA leave as active service, the employee neither lost a benefit that accrued prior to the taking of leave nor accrued any additional benefit to which he or she would not otherwise have been entitled. The DOL repeated its longstanding position that such practices do not violate the FMLA “as long as employees on equivalent types of leave receive the same treatment.”

Implicit in the opinion letter is the caveat that an employer’s ability to count absences accrued prior to an FMLA leave is not open-ended. The window of capturing such previously accrued absences should be no greater than the duration of the leave of absence itself. Thus, if an employer’s no-fault attendance policy counts absences during a rolling twelve-month period, that time period should be increased by no longer than the duration of the FMLA leave in order to determine which absences may be counted towards disciplinary action. For example, if under such a policy an employee is absent on January 1, 2018, and takes a three-month FMLA leave of absence later in 2018, the 1/1/18 absence should no longer be counted under the attendance policy after on or about March 31, 2019. Again, such a policy is permissible according to the DOL opinion letter, provided that the employer’s policy treats all types of leave as inactive service under the no-fault attendance policy.

Employers should note that, in addition to the FMLA, other laws such as the Americans with Disabilities Act, workers’ compensation statutes, state sick pay laws, and the Uniformed Services Employment and Reemployment Rights Act often come into play when dealing with employee attendance. These laws must therefore be taken into consideration when implementing and enforcing attendance policies in the workplace.

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