Taking FMLA/paid leave together may forfeit attendance bonuses

When employees return from FMLA leave, they should be given the same or equivalent position with equivalent benefits. FMLA regulations say that bonuses for "job-related performance, such as for perfect attendance" are available when employees meet all requirements for the bonus before FMLA leave began.

Based on this language, most employers don't take into account hours and days on FMLA leave when calculating an employee's attendance bonuses. That practice often irks employees who earn the bonuses for truly perfect attendance.

But a new 8th Circuit Court ruling suggests that employers may not need to give attendance bonuses to FMLA-takers after all, at least when employees on FMLA leave also take some paid leave in conjunction with unpaid leave.

Recent case: Omaha police officer Jeffrey Chubb took three weeks' FMLA leave after surgery. His employer's policy required employees to use paid leave (sick or vacation leave) to run concurrently with unpaid FMLA leave. Chubb chose to use his paid sick leave.

The city's attendance-bonus rules awarded employees an extra two hours of leave for every pay period if they took fewer than 40 hours' sick leave each year. Because Chubb's three-week leave exceeded 40 hours, the city refused to award him the attendance bonus.

He sued under the FMLA, arguing that the city failed to restore his benefits. But the court disagreed, saying that because the bonus was in the form of leave, rather than pay, denying it didn't necessarily violate the reinstatement provision.

The court said employers are free to require the use of accrued leave as substitution for FMLA leave, forcing workers to take either vacation or sick pay and then forfeiting the right to an attendance bonus in the form of extra leave. The decision may find its way to the Supreme Court. (Chubb v. City of Omaha, No. 05-1172, 8th Cir., 2005)