Appeals Court Says FMLA May Not Disrupt Perfect Attendance Records Even Though Sick Leave Can

  • Aug 20, 2019
  • FMLA
  • Dennis J. Merley

A federal appeals court recently ruled against an employer who counted FMLA absences against employees regarding a perfect-attendance benefit even though sick leave and other absences were treated the same.

Jerremy Dyer worked as a Technician for Ventra Sandusky, an automotive supplier with a manufacturing facility in Sandusky, Ohio. The labor union representing Dyer and his co-workers negotiated a collective bargaining agreement that includes a no-fault attendance policy.  Under this policy, employees are assessed between .5 and 1.5 points for absences, depending on whether the employee calls in to report the absence and whether the absence is for a partial or full day. The employee receives progressive discipline at various point levels, culminating in termination at eleven or more points. Certain absences are exempt from the point system, including absences pursuant to approved leaves under the Family and Medical Leave Act (FMLA).

Points Drop Off for Perfect Attendance

The attendance policy allows employees to gain back a point for each rolling 30-day period of perfect attendance.  Time off for vacations, bereavement, jury duty, military duty, union business and holidays do not disrupt the perfect attendance accrual. All other absences, including those taken in accordance with FMLA, require that the 30-day perfect attendance “clock” be reset to zero.

Dyer began to use approved intermittent FMLA leave for migraine headaches in 2013. Due to various non-FMLA related absences, he passed the 11-point threshold for attendance points and was terminated accordingly.  Dyer then sued the company in federal court for FMLA interference, claiming that he would have stayed below 11 points if his perfect attendance stretches did not have to be reset every time he missed work for FMLA-approved leave.

The trial court dismissed the case on summary judgment and Dyer appealed to the Sixth Circuit Court of Appeals.  He argued that the policy of ending his perfect attendance streak with each FMLA absence impaired his ability to reduce accumulated absence points and stave off termination, thereby interfering with the job protections afforded under FMLA.  The employer countered, however, that their policy simply treats FMLA leave the same as equivalent non-FMLA leave (e.g. sick leave) and that this is all that FMLA requires.

FMLA Does Not Impair Perfect Attendance

The Sixth Circuit reversed the dismissal and remanded the case back to the lower court for a jury trial, citing the FMLA regulation that states “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.” The Court declared that the opportunity to reduce attendance points and “flexibly manage” absences was in fact an employee benefit.

As such, while Dyer’s intermittent FMLA leave could certainly halt his progress toward a 30-day perfect attendance streak, it could not lawfully be allowed to erase it.  Under FMLA, Dyer was entitled to return to the level of accrual of perfect attendance days he had achieved prior to taking his FMLA leave.  The Court concluded that a jury should make the factual findings to determine whether Dyer’s rights in this regard had been infringed.

The Court also addressed the company’s defense that they were entitled to treat FMLA the same as equivalent absences, explaining that under FMLA regulations, equivalency of leave benefits seems to hinge on whether the leave is paid or unpaid. Since there was evidence in the record that certain forms of unpaid leave (e.g. military leave and union leave) did not interrupt an employee’s 30-day perfect attendance run, it was for the jury to decide whether the company did or did not treat equivalent leaves more favorably than FMLA.

Bottom Line

Employers are well advised to review their FMLA policies to insure that employees on approved FMLA leaves are not denied benefits (a term that courts interpret expansively) afforded to employees on other similar types of leave.  In conducting this review, be mindful of the fact that FMLA is an employee-protection statute that is interpreted liberally by the courts.