DOL Issues Opinion Letter on No-Fault Attendance Policies and FMLA

The Department of Labor (DOL) issued Opinion Letter, FMLA2018-1-A on August 28, 2018. This letter looks at the interplay between the Family and Medical Leave Act (FMLA) and an employer’s use of a no-fault attendance policy.

When an employee uses FMLA, the employer cannot consider time off an absence under its no-fault attendance policy. The employer cannot assess points to an employee under such a policy when they use FMLA, as it could be considered a discriminatory or retaliatory action.

In the recently issued Opinion Letter, the DOL states an employer may “freeze” points that an employee had acquired under the employer’s policy in the time prior to the FMLA leave. In many such no-fault attendance policies, employers will assess points to an employee when they have either an excused or unexcused absence. As points build up, discipline is applied in a progressive manner. Many policies provide that points will be dropped after a given period of time, for example after one year. If an employee takes FMLA, some of the points could potentially be dropped (as the employee was not actively at work for the 12-month period.) The Opinion Letter will allow employers to “freeze” these points so that when the employee returns from FMLA leave, they will have the same amount of points they had accrued prior to beginning leave. After the employee has been actively at work for 12-months, the points will drop off, just as they would for any other employee. The employer must be consistent in how they treat the points when employees are on other types of leave (such as vacation or personal).

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