Attendance Policy May Have Violated FMLA

By Jeffrey Rhodes October 8, 2019

​An automotive supplier may have violated the Family and Medical Leave Act (FMLA) by firing a technician under its no-fault attendance policy due in part to his use of unpaid FMLA leave, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff worked for Ford Motor Co. as a technician at its Sandusky, Ohio, plant. When the plant was purchased by Ventra Sandusky LLC, he and other Ford employees became Ventra Sandusky employees. The plaintiff experienced migraine headaches that often prevented him from working several days per month.

As an hourly employee, the plaintiff was a member of the United Auto Workers (UAW), Local 1216, and was subject to the collective bargaining agreement between the UAW and Ventra Sandusky. The collective bargaining agreement contained a no-fault attendance policy that was in effect throughout the plaintiff's employment.

The no-fault attendance policy did not require an employee to justify an absence by presenting a note from his or her doctor or other equivalent evidence. It further provided that between 0.5 and 1.5 points were assessed for absences, depending on whether the employee called in to report the absence and whether the employee was absent for his or her entire shift or only part of it.

Progressive discipline was imposed at various thresholds along the point system, and once an employee accumulated 11 or more points, the worker was terminated. Certain absences, including FMLA leave, were expressly excluded from the point-accumulation system, and the plaintiff did not receive any points for taking FMLA leave. Ventra Sandusky consistently enforced the policy.

The policy allowed employees to reduce the number of accrued absence points via its Attendance Point Reduction Schedule, which provided that there would be "one full point reduction for each rolling 30-day period wherein an employee has perfect attendance. Vacations, bereavement, jury duty, military duty, union leave and holidays will count toward the 30 days. [A]ll other excused absences will not be included."

Under the point-reduction schedule, employees who had perfect attendance for 30 days had their total points reduced by one point. Taking leave for one of the reasons listed in the point-reduction schedule kept the 30-day clock running and allowed the employee to remain eligible for the perfect-attendance point reduction. The policy treated paid time off for vacation, bereavement, jury duty, military duty, union leave and holidays as days worked toward the 30-day perfect-attendance requirement, and such absences did not stop or "reset" the 30-day clock. The point-reduction schedule did not count FMLA leave, or other kinds of unpaid leave such as disability, as days worked toward the 30-day perfect-attendance streak.

While Ventra Sandusky did not add points for absence due to FMLA leave, it classified FMLA leave as an absence that reset the 30-day perfect-attendance clock.

Beginning in 2013, the plaintiff used intermittent FMLA leave due to migraine headaches. The medical condition qualified for leave under the FMLA, and Ventra Sandusky approved all the plaintiff's requests for FMLA leave. The plaintiff was not assessed any points for using his leave under the act. Ventra Sandusky fired the plaintiff on June 30, 2016, for accumulating 12 points under the no-fault attendance policy. The plaintiff brought action in federal court, and the district court ruled in favor of the defendant on summary judgment.

[SHRM members-only toolkit: Managing Family and Medical Leave (FMLA)]

On appeal, the 6th Circuit found that resetting the plaintiff's perfect-attendance clock every time he took FMLA leave denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. The plaintiff was prejudiced by Ventra Sandusky's policy because his ability to remain employed hinged on his not taking FMLA leave. The plaintiff was eventually fired due to his inability to achieve "perfect attendance" and thereby reduce his total points.

For these reasons, the 6th Circuit reversed the district court and found that the plaintiff could take his claim to trial.

Dyer v. Ventra Sandusky LLC, 6th Cir., No. 18-3802 (Aug. 8, 2019).

Professional Pointer: Attendance policies that simplify employer discipline for excessive absenteeism can easily run afoul of the FMLA or other leave laws. Before implementing a new policy, employers must carefully evaluate whether the policy in any way prejudices employees taking protected leave.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]



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