Have a no-fault attendance policy? Beware the FMLA liability trap
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 time off that’s protected under the FMLA.
Recent case: Michelle Bailey was fired from her job at an Indiana packaging company after she received more than eight absenteeism points during a 12-month period. That was a firing offense under the company’s no-fault attendance policy.
Bailey had taken FMLA leave during the year. She 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 wouldn’t have been fired. She sued, arguing that she’d 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 it concluded 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)
Online resource: Accounting for FMLA leave in employee attendance policies is always a vexing problem. Read more about the topic in our HR Specialist article, “Attendance policies: Control absenteeism without breaking the law.” In fact, the article is such a good summary of the topic that the 7th Circuit Court of Appeals actually cited our article in the Bailey v. Pregis ruling.
Employee says he doesn’t want to apply FMLA to his leave? Note that for the record
If you agree not to charge the time off against FMLA leave (and it’s your decision), make sure you document the request and response. Then feel free to treat the absences as you would any other absence under your attendance policy.
Recent case: Jack Bell, who suffers from excessive earwax, was granted intermittent FMLA leave for flare-ups that kept him from working. He used some intermittent leave, but then began saying that his absences should not be FMLA leave. The employer took him at his word, noted his requests and marked the absences “non-FMLA.”
Before long, Bell had enough absences to reach the threshold for termination under the company’s no-fault attendance policy. His employer terminated him and he sued, alleging that he had been denied the right to FMLA leave.
The court dismissed his case. It reasoned that the employer had no reason to doubt Bell’s contention that the earlier absences didn’t qualify for FMLA leave. (Bell v. Dallas County, No. 3:08-CV-1834, ND TX, 2010)
