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New DOL Opinion on "No-Fault" Attendance Policies

The United States Department of Labor (DOL) issued an opinion letter this week addressing the interplay between leave under the Family Medical Leave Act (FMLA) and an employer’s “no-fault” attendance policy.  In the particular situation addressed by the DOL, the employer had a policy that employees would accrue points for being late and missing work. Of course, certain types of absences were excluded under the employer’s policy and did not accrue points.  If the employee accrued a certain number of points in a 12 month period, the employee was automatically fired.  However, if the employee remained under that level of points after 12 months, the employee’s points were wiped out and the employee started over with a clean slate.  

The employer’s policy also included that if an employee took FMLA leave, the employee’s points and the 12 month time period would be frozen, and, after the employee returned to work, the employee would start back with the same number of points that the employee had before the employee took the FMLA leave and the 12 month clock would resume where it left off.  The employer asked for guidance from the DOL on this policy with regard to whether or not it violated the FMLA.  

The Department of Labor, in its opinion letter, stated that this policy, so long as it was applied in a non-discriminatory manner and treated other types of leave similarly, did not violate the FMLA. Employers that have this type of “no-fault” attendance policy should review their policies and practices to make sure that both are in compliance with the guidance offered by the U.S. Department of Labor in this most recent opinion.

Laura Scott