DOL Finds that Employer’s No-Fault Attendance Policy Does Not Violate FMLA

On August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (DOL) released an Opinion letter addressing whether an employer’s no-fault attendance policy violates the Family and Medical Leave Act (FMLA). The policy effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking his or her leave. The DOL found that such a policy does not violate the FMLA, provided it is applied in a nondiscriminatory manner.

Under the employer’s policy, employees accrue points for tardiness and absences but do not accrue points for certain absences, including those that are FMLA-protected, as well as absences for workers’ compensation, vacation, and other specified reasons. Points remain on an employee’s record for twelve months of “active service” after accrual and the points are extended for the duration of his or her FMLA leave. Thus, the number of accrued points remains effectively frozen during FMLA leave.

The DOL found that because an employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled, the policy does not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. However, if the employer counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.