When employees are covered under theAct ( ) or military-leave laws, you're not allowed to count their legally protected absences in any negative way.
Pay special attention to the "gray areas" of absence-related laws, such as probationary discipline periods. As Honda learned in the following case, you can't extend an employee's disciplinary attendance probation period on a day-for-day basis for each FMLA or military-related absence.
Also, look at your other probationary periods, in addition to your absence policy. Such policies could also put your organization at legal risk if they are similarly extended by FMLA, military-leave or other legally approved periods. If you do require a certain number of worked days to measure improvement, make sure it is consistently applied across the board.
Recent case: Honda placed employee Marc Schmauch on a six-month probationary ("attendance improvement") program due to his repeated absences. During that probationary period, Schmauch, a National Guard reservist, took approvedand totaling 51 days.
While Honda approved those 51 days of FMLA and USERRA leave, it did make one crucial mistake: Honda extended Schmauch's probationary period by a corresponding 51 days. (Under Honda policy, absences due to FMLA leave, military leave, medical leave and personal leave prolonged the probation program by the number of days spent on leave.)
That 51-day extension made all the difference. Reason: During that extension period, Schmauch took some unexcused absences and was fired under Honda's attendance policy.
Schmauch sued, saying he wouldn't have been fired if Honda hadn't extended his probation period due to his approved FMLA and USERRA absences.
A district court sided with Schmauch, saying that Honda's policy of allowing FMLA and military leave to extend Schmauch's disciplinary probation policy, and, therefore, his vulnerablity to firing, goes against the FMLA and USERRA's ban on using leave as a negative factor in an employment decision. (Schmauch v. Honda of America Manufacturing, No. C2-02-751, S.D. Ohio, 2004)
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