On August 28, 2018, the U.S. Department of Labor (DOL) issued an opinion letter regarding an employer’s no-fault attendance policy which, effectively “freezes” (throughout the duration of their leave) the number of attendance points that the employee had accrued prior to taking his or her FMLA leave.[1] The DOL ultimately opined that this practice does not violate the FMLA so long as it is applied in a non-discriminatory matter and is consistent with the treatment of equivalent types of leave.

The attendance policy of the employer who submitted the request for opinion imposes points for absences and tardiness, except that employees do not accrue points for vacation and statutorily-protected leaves of absence, such as FMLA and workers’ compensation. If an employee accrues eighteen points, he or she is automatically discharged. Points “drop-off” an employee’s record after twelve months of “active service,” although the policy does not define “active service.” The policy provides that an employee is not considered on “active service” during any statutorily-protected leave, such as FMLA, workers’ compensation, etc. In other words, the time spent on this type of leave “tolls” the period in which points drop-off an employee’s record and, upon return to work following leave, the employee will have the same number of attendance points on their record.

The legal landscape for no-fault attendance policies is relatively straight-forward. Employers are not permitted to interfere with, restrain, or deny an employee’s exercise of FMLA rights.[2] Likewise, employers may not discriminate or retaliate against an employee for exercising their FMLA rights.[3] The DOL has opined on a prior occasion that ordinarily, no-fault attendance policies do not violate the FMLA so long as points are not assessed for FMLA absences.[4] Accordingly, FMLA leave cannot be counted against a no-fault attendance policy and an employee cannot receive points for FMLA absences under no-fault attendance policies. An employee on FMLA leave, however, is not entitled to superior benefits simply because he or she was on an FMLA leave of absence. Therefore, employees on FMLA leave are not entitled to additional benefits or payments contingent upon achieving a specified goal that the employee was not able to achieve because of the FMLA absences.[5]

Using this reasoning, the DOL opined that the employer’s policy of “freezing” an employee’s attendance points during the employee’s FMLA leave did not violate the FMLA, because the removal of attendance points is a reward for actually working and, therefore, constitutes an employment benefit. Under this policy, employees neither lose benefits accrued prior to leave, nor do they accrue a benefit to which they would not be otherwise entitled. Finally, the DOL opined that this policy does not violate the FMLA, so long as employees on equivalent types of leave are treated the same.

The Bottom Line

This opinion letter reinforces the DOL’s position regarding no-fault attendance policies but clarifies a particular issue regarding the accrual of attendance points. This is a good time for Employers with no-fault attendance policies to review them to ensure compliance with the FMLA.