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Beware FMLA trap in no-fault attendance policy

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in Employment Law,Firing,FMLA Guidelines,Human Resources

Lots of employers have no-fault attendance policies, which allow a certain number of unexcused absences without any documentation, and then punish employees who go beyond allowable limits.

No-fault policies make managing absenteeism easier for both employees and employers. It’s a tradeoff: Workers don’t have to worry about getting a doctor’s note, and managers save on administrative headaches.

Most no-fault attendance policies also include a way to “forgive” absences over time—typically after 12 months pass without more absences.

No-fault policies are fine—as long as they don’t penalize workers for taking FMLA time off.

Recent case: Michelle Bailey, who worked for Pregis Innovative Packaging, was terminated when she received more than eight points for absenteeism during a 12-month period. That was a firing offense under the company’s no-fault attendance policy.

Bailey, who had taken time off under the FMLA during the year, did some calculations and concluded that if the company had counted her FMLA time off toward the 12-month period, she would have erased some of the absentee points and would not have been fired. She sued, arguing that the company’s practice meant she had been denied a leave benefit other employees received.

The court first noted that it is a common practice for employers to exclude FMLA time from the waiting period before more absences can be added without penalty. Then the court concluded that the employer did nothing wrong. Buying Bailey’s argument would have been tantamount to rewarding additional absences when forgiveness plans are intended to reward good attendance. (Bailey v. Pregis, No. 09-3539, 7th Cir., 2010)

Note: Accounting for FMLA leave in employee attendance policies is always a vexing problem. That’s why we covered the topic in depth in “Attendance policies: Control absenteeism without breaking the law” in the September 2008 issue of Illinois Employment Law. The article is such good summary that the 7th Circuit Court of Appeals cited it in its Bailey v. Pregis ruling.

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