Question: We have a “no-fault” attendance policy, which means that if an employee doesn’t show up for a scheduled shift, they get a point. We’re careful, however, not to penalize, discipline, or terminate anyone for using protected leave (such as paid sick leave or FMLA). Instead, we incentivize employees. If an employee reaches the end of the quarter without missing any days, we give them a perfect attendance bonus! One of our employees recently complained when he didn’t get a bonus due to his use of an FMLA day. Since we didn’t count the FMLA day against him under our no-fault attendance policy, our perfect attendance incentive for people who are actually at work is okay, isn’t it?
Answer: Unfortunately, probably not. Employers cannot “interfere with” an employee’s right to use protected leave such as federal Family and Medical Leave Act (FMLA) leave or mandatory paid sick leave nor can an employer “discriminate or retaliate” against an employee for using protected leave. In a recent Sixth Circuit Court of Appeals case, an employer had a no-fault attendance policy and assessed points for absences. If an employee had a period of perfect attendance, then the points reset and they started over from zero. The company didn’t discipline employees for using FMLA, but an absence due to FMLA would exclude them from having their points reset. The court said the attendance policy raised enough of a potential concern under the FMLA that a jury should decide whether the company effectively interfered with the employee’s right to take FMLA leave (Dyer v Sandusky, LLC 6th Cir, Aug. 2019).
No-fault attendance programs and attendance bonuses can be tricky. Before you implement an attendance policy that accounts for FMLA and other protected absences in any negative way, contact your Vigilant employment attorney.