“No-fault” attendance policies have become common in many workplaces, especially in large companies with multiple locations. These policies create a system where employees automatically accrue points for each unplanned absence, regardless of the reason for the absence. When an employee accrues a certain number of absentee points within a given time frame, the employee is subject to progressive levels of discipline, generally including termination.
No-fault policy systems remove a lot of individual judgment from managers and supervisors and help employers keep more accurate, comprehensive records related to absences. This can help ensure that employees are being treated and disciplined more consistently, ideally reducing the instances of and complaints related to alleged discrimination or retaliation. But no-fault attendance policies cannot be implemented without some degree of human interaction and oversight without conflicting with employment laws like the Family and Medical Leave Act (FMLA).
A new letter issued by the U.S. Department of Labor (DOL) clarifies the circumstances under which these policies are allowable, so long as employers make accommodations for the requirements of the FMLA.
The FMLA and Leave: The Basics
Under the Family and Medical Leave Act, eligible employees may take up to 12 weeks per year of unpaid, job-protected leave for reasons related to their own health and welfare or the health of specified family members. Not every employee is covered by the law; an employee must work for a covered employer, such as a public agency or a private sector employer with 50+ employees, and must have worked for that employer for at least 12 months, at least 1,250 hours over the past 12 months (pursuant to FMLA computing principles), at a location where the company employs 50 or more employees within 75 miles.
Examples of leave situations that would qualify for FMLA protection include giving birth to or adopting a child, receiving treatment for a serious health condition, or taking care of a child or parent with a serious health condition, among many other circumstances. FMLA does not compensate a worker for his or her absence, but does ensure that he or she doesn’t suffer adverse employment actions (e.g., termination, demotion, loss of seniority, etc.) while out on a protected leave.
How No-Fault Absentee Policies Could Run Afoul of FMLA
The U.S. Department of Labor commented specifically to clarify how no-fault absentee policies should accommodate FMLA requirements in an opinion letter published on August 28, 2018. The DOL addressed the overall allowability of these policies in an earlier opinion letter dated July 29, 2003:
Point systems, sometimes, referred to as “no-fault” attendance policies, do not necessarily violate the FMLA as long as points are not assessed for employees who are absent due to any FMLA qualifying reason. Employers are prohibited from counting FMLA-qualifying absences against employees under a “no-fault” attendance policy.
In the new letter, the DOL addressed a specific nuance of some no-fault policies: “freezing” the employee’s accumulated points while they are out of work on FMLA leave. Under most systems, points remain credited to an employee for a certain amount of time (e.g., one year), after which they drop off and are no longer counted towards disciplinary benchmarks. The DOL considered a question regarding a system in which a worker’s “active service” time under these policies is the length of time that passes during which they are working and would be subject to possibly accruing more points for absences. The policy essentially stops the clock on the expiration of the employee’s accrued absences; when the employee returns to work after FMLA leave, they are in the same position as when they left.
The DOL held that this practice fully complies with the requirements and spirit of the FMLA, so long as other equivalent types of leave are also not counted towards the “active service” calculation of the amount of time necessary to work off accrued points.
Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA.… As you describe in your letter, the number of accrued points remains effectively frozen during FMLA leave under your employer’s attendance policy. 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. WHD [U.S. DOL Wage and Hour Division]’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.
FMLA Leave vs. No-Fault Absences
Employers should take care to ensure that FMLA leaves are designated appropriately under a no-fault attendance system. If you are a covered worker who qualifies for leave under FMLA, make sure your employer designates your leave correctly so you aren’t penalized under a no-fault attendance system. If you are unsure of what leave may qualify or how to protect your rights under FMLA, please contact us today to discuss your situation.