Make sure attendance policies don’t violate FMLA
February 17, 2009 by Sam NarisiPosted in: FLSA, In this week's e-newsletter, Latest News & Views, Recent Decisions
FMLA often throws a wrench in employers’ efforts to keep absenteeism in line. Here’s an example of an attendance policy that violated the law, according to one court:
The company tracked absences by dividing the hours employees missed by the hours they were scheduled to work. Employees were disciplined if they’d been absent for more than 4% of their scheduled hours.
Under the policy, time off for FMLA leave was not counted as an absence and not included in employees’ scheduled hours.
An employee was disciplined and later fired for repeatedly violating that attendance policy. However, she sued, claiming she’d have been compliant with the rule if it weren’t for a period of FMLA leave she had taken.
By the company’s calculation, her absence rate was more than 7%. But if those hours she would have worked if she didn’t take FMLA were counted, she would’ve been below 4%.
In other words, she claimed, she was being penalized for taking FMLA.
The company argued the policy was not biased against employees on medical leave, because FMLA was not factored into either part of the equation. But the court didn’t buy it.
The way the policy was set up, employees who took FMLA weren’t allowed as many non-FMLA absences as other employees. Therefore, the policy had a negative impact on employees who took leave.
Cite: Dickinson v. St. Cloud Hospital
Tags: absence policy, unexcused absences
February 18th, 2009 at 11:46 am
Our vacation policy says vacation is earned by time worked. If an employee is out on FMLA then they do not earn vacation time during that period since they are not working. I have heard “you can and you can’t” do this from different sources. Does anyone have an answer to this one?
February 18th, 2009 at 1:28 pm
I am also interested in knowing the answer to Patrick’s question.
February 18th, 2009 at 1:36 pm
Our policy states that as well…you do not accrue vacation while on leave.
February 18th, 2009 at 2:58 pm
I have the same issue with the others we offer a quarterly time bank and paid time off, but if an employee is out more than half the month they do not receive their paid time off accrual, even if out on FMLA
February 18th, 2009 at 3:33 pm
I believe if your policy states that you do not earn/accrue vacation while out on leave (any type) then you are fine following your policy. The problem arises when you don’t have a written policy clearly stating how and when vacation/sick/pto is accrued.
February 18th, 2009 at 3:34 pm
I too have that same clause in my policy manual. Although I’m not sure if its the right way to handle it, I take into account any time someone uses their vacation time in connection with their FMLA leave. They do not lose any accrued vacation time if they are out on vacation, so if vacation time is used during an FMLA absence, I only count the FMLA days that are NOT covered by vacation time.
February 18th, 2009 at 4:04 pm
Employees who are using paid leave while on FML are entitledto accrue the same benefits including seniority and vacation as other employees on paid leave. It is only during a period of unpaid leave that benefits do not accrue. 29 cfr 825
Anyway here is what we do. While on FML (paid or unpaid) the employee will continue to recieve credit for service for the purposes of leave accrual. FML is “continued service” for purposes of vesting and eligibility to participate in retirment and insurance programs.
In all cases where the EE is using some form of approved paid leave the EE will continue to accrue leave benefits. If at some point paid leave is exhausted and unpaid leave is taken benefits other than health, dental and life insurance are discontinued for the duration of the unpaid status. Annual, sick, personal, or holiday leave is not accrued for the duration of the unoaid status
February 19th, 2009 at 12:27 pm
Our written policy states that you do not accrue vacation or sick while on any type of leave of absence (paid or unpaid). You run into dangerous legal territory, even with a written policy, if you don’t follow it….you make concessions for some employees and not others.