No-Fault Attendance Policies May Violate FMLA, Sixth Circuit Decides
December 1, 2019
The Sixth Circuit recently issued a decision that should be a warning to employer whose employees take leave protected by the Family and Medical Leave Act (FMLA). In Dyer v. Ventre Sandusky, LLC, the Court found that the employer’s absence point system violated the Plaintiff’s rights under the FMLA and constituted an interference with employee’s rights under that statute.
The FMLA allows covered employees to take up to twelve weeks of leave per year for a “serious health condition” that makes the employee unable to perform the functions of the employee’s position. At the end of the leave, the employee must be restored to his or her position or a position equivalent “in pay, benefits, and other terms and conditions” of their employment. Employers are prohibited from interfering with, restraining or denying an employee’s exercise of his or her rights under the Act.
Ventre Sandusky is an automotive supplier with a facility in Sandusky, Ohio. The Plaintiff, Dyer, was a technician employed by Ventre Sandusky and suffered from migraines which prevented him at times from working several days per month. The Plaintiff’s condition constituted a serious health condition under the FMLA, and he met the other qualifications to be covered by the Act.
Ventre Sandusky’s agreement with the UAW provided for a “no-fault attendance policy” in effect at the time of Dyer’s employment, which did not require an employee to justify an absence by presenting a doctor’s note. Absences are assigned points. After 11 points, an employee is subject to termination. FMLA absences are excluded from the point accumulation system.
So far, the company’s policy does not violate the FMLA. However, Ventre Sandusky’s system includes a provision under which employees are able to reduce accrued points “for each rolling 30-day period wherein an employee has perfect attendance.” Leave taken for vacations, bereavement, jury duty, military duty, union leave, and holidays do not count as points for the 30-day rolling period. Notably, leave taken under FMLA is not excluded and any protected leave taken during the 30-day rolling period would “restart the clock”.
Dyer used intermittent FMLA leave for his migraines. He was not assessed any points for any leave taken under the Act, however each absence of unpaid leave taken under the Act re-started his 30-day rolling period, in effect restarting the perfect attendance clock. He was terminated in 2016 for accumulating 12 points under the no-fault attendance policy. Dyer sued alleging an “interference” claim. The company moved for summary judgment and the trial court granted Defendant’s motion.
The Sixth Circuit reversed the trial court’s decision, holding that a reasonable jury could find that the 30-day perfect attendance point reduction system was a benefit and that the policy of including absences covered by the FMLA in the restarting of that clock was an interference with Plaintiff’s rights to take leave under the Act. The Court held, “[r]estarting the 30- day period for eliminating one attendance demerit for intermittent FMLA leave punishes the employee for taking that leave, even though the FMLA leave itself does not count toward the 11-point limit.”
The bottom-line is that point-based absence systems and no-fault attendance policies must be reviewed carefully to ensure that they do not dissuade an employee from exercising his or her rights to take leave protected by the FMLA. If an employee is faced with the choice of taking protected leave or losing a benefit, liability for companies may follow.
The decision can be found at Dyer v. Ventra Sandusky, LLC, 934 F.3d 472 (6th Circuit, 2019). This update is provided for information purposes only, and should not be construed as legal advice on any subject matter, nor should it be construed as creating an attorney client relationship.