Category Archives: Leave of absence

Does Your Attendance Policy Violate the FMLA?

Contributed by Steven Jados, September 5, 2019

The recent decision in Dyer v. Ventra Sandusky, LLC, issued by the U.S. Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee), should motivate employers to take another look at whether their attendance policies run afoul of the Family and Medical Leave Act (FMLA).

There are plenty of gray areas in the law, but it is generally clear that employees are not to be disciplined because they are absent for FMLA-covered reasons. That also means that employees should not accumulate attendance “points,” e.g., under a no-fault attendance policy, for FMLA-covered absences when such points can contribute to discipline up to and including termination of employment.

Clocking In

To its credit, the employer in Dyer did not assign attendance points for FMLA-covered absences.  But unfortunately for the employer, that is not the end of the story.

Under the employer’s attendance policy, employees were eligible for a one-point “reduction” of their attendance point balance for every 30-day period in which the employee had “perfect attendance.” The employer’s definition of perfect attendance was not self-explanatory.  For instance, an employee could be absent for several different reasons — including vacation, bereavement, jury duty, military duty, holidays, and union leave — and still have “perfect attendance” and eligibility for attendance point reductions.

However, FMLA-covered absences were not included among the types of absences that preserved perfect attendance status and point-reduction eligibility. And if an employee had a FMLA-covered absence, his progress toward the 30-day point reduction goal was reset to zero.

The Sixth Circuit noted that the FMLA’s regulations generally require that an employee not lose benefits while on FMLA leave. Because attendance point reductions (and progress toward such reductions) are benefits, the Sixth Circuit noted that, at the very least, progress toward the 30-day goal should be frozen while employees are on FMLA leave, rather than being reset to zero. The court also indicated that if other “equivalent,” but non-FMLA forms of leave were counted toward the 30-day goal, then FMLA-covered absences should also be counted toward the 30-day goal.

The bottom line is that the Dyer decision instructs employers that disciplinary and benefit policies must be closely scrutinized to determine whether they might dissuade employees from taking FMLA leave — or otherwise harm employees who take FMLA leave. If harm results, or if employees are faced with the decision of taking FMLA leave or forgoing benefits, potential exposure to liability under the FMLA may exist.

FMLA: Employer’s Leave of Absence Form Defeats Former Employee’s FMLA Claim

Contributed by Michael Wong

Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.

Absent employeeHowever, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014), citing Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 n. 3 (7th Cir.2008) states that, “If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.”

In the recent case Amstutz v. Liberty Ctr. Bd. of Educ., No. 3:13CV2385, 2015 WL 5254988, (N.D. Ohio Sept. 9, 2015), the District Court for the Northern District of Ohio held that the employee affirmatively declined FMLA leave and thus was not able to pursue any of her FMLA claims against the employer. In Amstutz, the employee requested a week of sick leave for her grandson’s birth. The employee was advised that under the CBA she could only use one sick day and would have to use personal days for the rest of the week. When the week arrived the employee called in sick and said she would be bedridden for the rest of the week. When the employee returned to work she filled out a leave of absence form and provided a doctor’s note. The employer’s leave of absence form included a section that explained FMLA leave and included a checkbox where the employee could request FMLA leave. Instead of selecting unpaid FMLA leave, the employee requested regular paid sick leave.

The Court in Amstutz held that the employee understood FMLA leave as she had taken it before and thus when filling out the leave of absence form she expressly declined FMLA leave by choosing paid sick leave and not checking the box for FMLA leave. The Court further held that since the employee declined FMLA leave, the employer could not have known that she wanted FMLA leave. Therefore, the employer was not obligated to provide her FMLA leave and could not have interfered with or retaliated against her in violation of the FMLA.

The takeaway for employers from these cases is that there are actions that you can take to limit your exposure to FMLA claims through your policies and forms. First and foremost, it is important to have an FMLA leave policy that is understandable and that identifies who employees should talk to in the event of an absence. Next, as demonstrated by these cases, leave of absence forms and other reporting techniques can be used to help in defending against FMLA claims by showing that the employee affirmatively declined FMLA leave.