Don’t deduct FMLA leave from hours worked when calculating absenteeism ratio

Just when you thought you had mastered the intricacies of the FMLA, employees and their lawyers have come up with a new trick that could trip you.

This one involves how employers calculate attendance under no-fault absenteeism programs. If, like many employers, you base discipline for absenteeism on the percentage of work hours an employee misses, take a close look at exactly how you calculate that ratio. If you get it wrong, you could be liable for interfering with the employee’s right to take FMLA leave.

Here’s how to do it right: Don’t deduct FMLA leave from the actual hours an employee worked. Count them as hours worked for the purposes of tracking absenteeism. If you deduct FMLA leave time, it would take the employee fewer missed hours to reach the threshold for discipline. And according to a recent Minnesota court decision, that amounts to using FMLA leave as a negative factor. That’s illegal.

Doing the math shows the nature of the problem. Let’s say your discipline cutoff is a 33 1/3% absenteeism rate. (That’s extremely generous, but useful for this hypothetical.) An employee scheduled to work 40 hours takes 10 hours of intermittent FMLA leave. If you deduct those 10 FMLA hours, the employee is down to 30 hours worked. If she misses another 10 hours for some other reason, she has hit the threshold for being disciplined for absenteeism. But if you count the FMLA hours as part of her hours worked, she has missed only 25% of her scheduled time.

Recent case: Amanda Dickinson worked for a hospital that used a no-fault absenteeism program. Because employees worked varied hours and shifts, the policy tried to take into account individual schedules by measuring missed work as a percentage of scheduled hours. The hospital never counted FMLA leave as absences, but it did subtract hours taken for FMLA leave from the number of hours worked when it came time to calculate the percentage of work employees missed.

The hospital fired Dickinson when she missed more than 4% of scheduled hours, exceeding the maximum allowed under the no-fault policy. She sued.

Dickinson argued that she had taken FMLA leave for a chronic condition and an FMLA-covered illness, but that those hours had been subtracted from her hours worked. That meant, she claimed, that she was being punished for taking FMLA leave. She said the FMLA hours had to be added back in before the hospital could calculate her non-FMLA absenteeism rate.

The court agreed. Subtracting the FMLA hours had the effect of punishing employees who took FMLA leave. (Dickinson v. St. Cloud Hospital, No. 07-3346, DC MN, 2008)

Final note: No word yet on whether this issue will be covered in new FMLA regulations scheduled to be issued in the next several weeks, or whether this decision will be appealed.