Many employers have no-fault attendance control policies. Stated generally:
- An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
- An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.
The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy. But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”
The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue. The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf
The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis. For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.
It is important that employers focus on this issue. It is also important to note that a court might not agree with the DOL opinion letter. As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.
Further, the answer may be different with state and local leave laws. We know that many state and local leave laws provide employees with greater protection than federal law.
So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.
This blog should not be construed as legal advice or as pertaining to specific factual situations.