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Sometimes attendance policies and FMLA don’t mix

August 21, 2019

By Tony Kaylin, courtesy SBAM Approved Partner ASE

Many companies, union and nonunion, have point attendance policies.  The following is instructive on how to approach reduction of points when FMLA leave is applied.

Dyer was an hourly, full-time employee working as a “Technician” for Ventra Sandusky.  He suffers from migraine headaches that often prevent him from working several days per month.  As an hourly employee, Dyer was a member of the United Auto Workers, Local 1216, and therefore subject to the collective bargaining agreement between the union and Ventra Sandusky.  The collective bargaining agreement contains a no-fault attendance policy that was in effect throughout Dyer’s employment.

Essentially the attendance worked this way: between 0.5 and 1.5 points were assigned to employee absences depending on the circumstances surrounding them, though no points were given for FMLA leave. Workers were progressively disciplined as they accumulated points, and termination would occur after a worker had 11 or more points.  Ventra Sandusky consistently enforced this policy.

Employees could reduce their total by one point if they had perfect attendance for 30 days.  While certain forms of time off would count toward the 30-day attendance period, taking FMLA and some other forms of leave would result in a resetting of the clock.  That is where the problem lied.  Every time Dyer took FMLA, he could not qualify for the “perfect attendance” by reducing his total attendance points.  This approach also applied to other forms of disability leave as well.

In other words, if an employee worked three days, took the fourth day off for an FMLA qualifying purpose and returned to work on the fifth day, his attendance streak restarted at one day worked, rather than four days worked.  If an employee took one day a month FMLA leave, that employee may never get to enjoy the benefits of perfect attendance under this policy.

Eventually, Ventra Sandusky terminated Dyer on June 30, 2016, for accumulating 12 points under the no-fault attendance.  It should be noted that Dyer never used vacation time to cover the day off, but always took unpaid time off.  His vacation totals remained intact.

Dyer sued Ventra Sandusky for FMLA interference.  He argued that his rights under FMLA were violated,  because each time he used his approved intermittent FMLA leave, the 30-day perfect attendance clock was impermissibly interrupted and reset, interfering with his ability to reduce accumulated points under the attendance policy.  Dyer claimed that if his FMLA leave were treated the same as vacation, bereavement leave, or the other excluded types of absences listed in the reduction schedule, he would have fewer points on his attendance record and would not have been terminated.  Dyer also argued that, due to the nature of his medical condition, he cannot control when he needs to take FMLA leave, and he therefore faced inevitable termination as points accumulated without the same opportunity to reduce them as employees taking non-FMLA leave.

The district court ruled in favor of Ventra Sandusky on summary judgment. The company contended that the policy treats FMLA leave the same as equivalent non-FMLA leave for the purposes of its attendance point reduction schedule, which is permissible under the relevant law and regulations. 

On appeal, the 6th Circuit Court of Appeals did not buy the company’s arguments and reversed the court decision in a unanimous opinion. The court stated that Ventra Sandusky’s reading would allow employers to discourage FMLA leave by creating high thresholds for point reduction that could never realistically be met by anyone taking such leave.   The court also dismissed the company’s argument on equivalent leaves.  The court stated that although “equivalent” types of non-FMLA leave also disrupted workers’ attendance records, there was a question of what kinds of leave were “equivalent” and whether they were treated the same under the policy.  The court ordered the case remanded because “[f]or these reasons, a jury could find that Ventra Sandusky’s policy interfered with Dyer’s FMLA rights by not freezing the accrual of perfect attendance during his leave.”

For those organizations that have a point attendance policy, it is advised to consult with counsel to ensure that “equivalent” type of leaves are being treated the same.

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