Tag 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.

More from California – Paid Family Leave to Care for More Family Members!

Contributed by Karuna Brunk

On September 24, 2013, Governor Jerry Brown signed a bill to extend California’s Paid Family Leave program to relatives beyond parents, spouses, children, registered domestic partners, and same-sex spouses.  Under this program, employees will be able to take up to 6 weeks off from work with partial pay from the state to take care of extended family members such as grandparents, grandchildren, siblings, or parents-in-law. 

California’s Paid Family Leave guarantees up to 55% of an employee’s average weekly salary for up to 6 weeks within a 12-month period.  Employees pay for the partial salary through a 1% deduction in their paychecks on the first $95,585 they earn annually.  To be eligible for the partial payment, employees must have earned $300 in the preceding 12 months. 

What does this mean for employers?    Essentially, employees in California can now take paid time off to take care of grandparents, grandkids, and other extended family.  Already the Federal Family Medical Leave Act and the California Family Rights Act allow employees to take up to 12 weeks of job protected but unpaid leave.  Although Paid Family Leave does not guarantee job protection, the new additions to the act allow employees to take paid time to care for additional persons.  In accordance with this new legal expansion, employers should update employee manuals and internal policies.  They should also get ready for more employees to take leave.

Tenth Circuit: A Flexible Schedule is NOT A Reasonable Accommodation When A Job Requires Regular Attendance

Contributed by Karuna Brunk

On May 8, 2013, the United States Court of Appeals for the Tenth Circuit affirmed the judgment of the district court and held that if a job requires punctual attendance, a flexible work schedule is not a reasonable accommodation. 

Rebecca Murphy filed a suit against her former employer Samson Resources Company alleging that Samson violated the Americans with Disabilities Act and the Family Medical Leave Act.  Murphy worked for Samson as an accounting assistant.  During her tenure at Samson, Murphy began experiencing migraine headaches that caused her to leave work.  To accommodate her impairment, Samson allowed Murphy to make up for her missed time.  However, by April 2008, Murphy had a negative balance in her paid time off based on her leaving work. 

On June 19, 2008, Murphy applied for intermittent FMLA leave, and Samson approved her application.  She also received Short Term Disability leave that required her to submit a doctor’s certification explaining her absence.  Murphy provided the doctor’s notes from her neurologist that only covered until November 20, 2008.  On November 21, 2008, Murphy informed Samson that she would submit a new doctor’s note, but she never did.  On December 1, 2008, Samson terminated her employment. 

The district court summarily dismissed Murphy’s case and held that one of the essential functions of Murphy’s job at Samson was regular and punctual attendance because of the time sensitive nature of Murphy’s tasks.  Therefore, the district court found that Murphy could not actually perform this essential function of the job because she was leaving work constantly.  On appeal, Murphy did not dispute that punctuality was an essential aspect of her job, but she argued that a jury could have concluded that she was qualified for her job because Samson could have reasonably accommodated her through a flexible work schedule. 

The Tenth Circuit agreed with the district court.  The Court especially found it persuasive that Samson had already permitted Murphy to have a flexible schedule and make up missed work, but the arrangement caused performance issues and led to Murphy being unable to make up for time she missed.  Additionally, the Court found that a leave of absence was not a form of reasonable accommodation.  An employee could take time for medical care, but the employee must provide an expected duration of the impairment.

The Tenth Circuit also found that Samson had not retaliated against Murphy for taking FMLA leave.  You can find the court’s full opinion here

The big take-aways for employers from the Tenth Circuit decision:

  • Although you have an obligation under the ADA to engage in a discussion regarding reasonable accommodation, it is perfectly reasonable for you to expect your employees to be able to perform the essential functions of the job, including actually being at work. 
  • Additionally, a permanent medical leave is not a reasonable accommodation under the ADA.  An employee may request a temporary leave, but the employee is obligated to notify you of when he or she anticipates an end to the leave. 

Family and Medical Leave Act 101: If Employee Abandons Job, Employee Abandons Right to FMLA Leave

Contributed by Carly Zuba

At times, navigating the rough waters of the Family and Medical Leave Act (FMLA) can be understandably difficult and confusing for employers. Generally, the FMLA provides eligible employees with twelve weeks of leave during any twelve-month period if they have a serious health condition that makes them unable to perform the functions of their position or if they have to care for an immediate family member who has a serious health condition. While the statute provides that it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA, the statute also leaves a lot of room for interpretation — which in turn creates a ton of questions for employers. For instance, can an employer terminate an employee if the employee fails to show up for his or her assigned shifts following a period of intermittent FMLA leave, without such termination constituting FMLA interference? Well, the Eighth Circuit recently ruled that a cable customer service representative who was terminated as a voluntary resignation after failing to call in or show up for work on three consecutive shifts has no viable FMLA interference claim (Ballato v. Comcast Corp., 8th Cir., No. 11-2744, 4/27/12).

Relevant Facts: 

  • Ballato, the employee, was granted intermittent FMLA leave on account of chronic fatigue and depression. 
  • Upon returning from 11 days of FMLA leave, Ballato sent a series of emails expressing job dissatisfaction.  In response, the company deactivated Ballato’s access to company computer systems and the building, since it viewed some of the emails as “disturbing.” 
  • The company attempted to call Ballato, but Ballato did not return the calls, since he thought he was being terminated. 
  • That same day, Ballato called the company’s Resource Center to request FMLA leave, but the department told him to contact his supervisor.  Ballato failed to do so.
  • Ballato went to work that day and was denied entrance since his badge was deactivated. 
  • He erroneously believed he was fired, and proceeded to not report to work as scheduled for three consecutive shifts; thus, the company terminated him due to unexcused absences.

While the court agreed that the above series of events leading to his termination did not exactly portray a smooth firing process, the court felt that the events also did not show interference with Ballato’s FMLA rights.  The court determined that the employee had many opportunities to correct his misperceptions that he had been terminated before missing three consecutive shifts; indeed, it explained that “an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to FMLA than she did before taking the leave.”

Take-Away for Employers: Employees are not granted permission or an unfettered right to violate other unrelated company policies or to cut off communications with the employer or mislead the employer about their absences while they are on FMLA leave, otherwise they may lose its protection.  Though these are fact-specific inquiries, usually employers will not be on the line for FMLA interference if they terminate an employee who requested FMLA leave for reasons unrelated to FMLA.  As always, if you have any questions regarding the possible termination of an employee, it is always a good idea to contact an experienced labor and employment attorney before moving forward.