DOL OKs freezing no-fault attendance points during FMLA

Dive Brief:

In an opinion letter issued Aug. 28 (FMLA2018-1-A), the U.S. Department of Labor (DOL) approved an employer's no-fault attendance policy that effectively freezes an employee's accrued points throughout the duration of his or her Family and Medical Leave Act (FMLA) leave.
Under the unnamed employer’s attendance policy, employees accrue points for tardiness and absences, with some exceptions, such as those that are FMLA-protected. Once an employee accrues 18 points, he or she is fired. Points remain on an employee’s record for 12 months of "active service" after accrual. During FMLA leave, an employee neither accrues nor loses points.
"[S]uch a policy does not violate the FMLA, provided it is applied in a nondiscriminatory manner," DOL said, but offered an additional warning: "If the employer, however, counts equivalent types of leave as 'active service' under the no-fault attendance policy — meaning the employer counts such leave toward the twelve months necessary to remove points — then the employer may be unlawfully discriminating against employees who take FMLA leave."

Dive Insight:

No-fault attendance policies are attractive to employers for many reasons, but they must be implemented carefully. DOL has previously said that absences covered by the FMLA cannot be counted toward an employee's absence limit, and recent enforcement actions from another agency, the U.S. Equal Employment Opportunity Commission (EEOC), demonstrate that the Americans with Disabilities Act (ADA) poses an even bigger hurdle.

UPS agreed to pay $1.7 million last year to resolve a lawsuit alleging that its 12-month leave policy violated the ADA. The policy allowed workers to take a year of unpaid medical leave without fear of losing their jobs. Upon exhausting that leave, however, they were fired. EEOC said that the policy ran afoul of the ADA’s requirement that employers provide reasonable accommodations to workers with disabilities.

And just last month, Mueller Industries agreed to pay $1 million to settle claims that its 180-day policy created ADA violations because the employer terminated employees or failed to provide reasonable accommodation for employees who exceeded the maximum allotment.

While the existence of a no-fault attendance policy may not be a per se violation of the ADA, it can easily create one, EEOC has said. In a 2016 guidance, Employer-Provided Leave and the Americans with Disabilities Act, the commission recommended that employers invite employees on leave to notify the company if they require an accommodation for a disability.

As for DOL's most recent letter on the subject, it came alongside five other letters answering employer wage and hour questions. The agency touched on FMLA leave for organ donation, the compensability of benefits fairs and other issues. The letters represent DOL's second batch of new letters since the Trump administration reinstated the use of opinion letters.

The Obama administration had scrapped the letter program in favor of broader "administrator's interpretations" but employers favored the letters because they could be used as an affirmative defense in litigation. Employee advocates have criticized the program, saying it favors employers; business representatives have acknowledged that the system is flawed, but they maintain that it is, for now, the best option available.