Client Alerts
August 13, 2019

Sixth Circuit: Perfect Attendance Policies Must Not Disadvantage Employees Who Take FMLA Leave

Stites & Harbison Client Alert, August 13, 2019

Many employers have policies that reward perfect attendance in some fashion. A recent ruling from the Sixth Circuit makes clear that, in many cases, such policies must not consider leave taken pursuant to the Family and Medical Leave Act (“FMLA”) as something that “resets” the employee’s attendance streak. In light of this ruling, employers with perfect attendance policies would be wise to revisit them in order to ensure that they do not run afoul of the FMLA.

In Jerremy P. Dyer v. Ventra Sandusky, LLC, No. 18-3802, the plaintiff’s employer had a no-fault points-based attendance policy in which absences were assessed between 0.5 and 1.5 points and termination occurred at 11 or more points. For certain absences, such as FMLA leave, employees were not assessed points. The employer also had the following perfect attendance policy:

One (1) full point reduction for each rolling 30 day period wherein an employee has perfect attendance. Vacations, Bereavement, Jury Duty, Military Duty, Union Leave and Holidays will count toward the 30 days all other excused absences will not be included.

The plaintiff took intermittent FMLA leave for migraine headaches. Under the employer’s policies, while the plaintiff did not accrue any points when he was absent pursuant to his FMLA leave, the 30-day rolling period for perfect attendance was “reset” each time he took FMLA leave. Eventually, the plaintiff accrued more than 11 points and was terminated. In litigation, the plaintiff showed that if his FMLA leave had not counted as “absences” with respect to the perfect attendance policy, he would have received point reductions and would not have reached 11 points.

The Sixth Circuit reversed the district court’s grant of summary judgment to the employer on the plaintiff’s FMLA interference claim. Following the lead of two Department of Labor opinions on the issue, the Sixth Circuit held that resetting the plaintiff’s perfect-attendance clock each time he took FMLA leave constituted interference because it attached a negative consequence to taking FMLA leave. The practical result of the policy was that achieving a point reduction—and avoiding termination—hinged on the plaintiff’s not taking FMLA leave. The court similarly reasoned that a point reduction is an “employment benefit” that must be restored to an employee upon returning from FMLA leave, meaning that the plaintiff’s use of FMLA leave could “freeze” the accrual of perfect attendance but could not reset it.

Following Dyer, employers with policies that tie any advantages, benefits, or compensation to perfect attendance should review their policies to ensure they are not disadvantaging employees on FMLA leave. To read the Sixth Circuit’s full opinion, please click here.

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