A recent decision by the U.S. Court of Appeals for the Sixth Circuit illustrates the potential pitfalls of a “no-fault” attendance policy when the policy is subject to a challenge brought under the Family and Medical Leave Act (FMLA).

In Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. August 8, 2019), the appeals court, reversing a federal trial court, ruled that a jury should determine whether the employer’s no-fault policy unlawfully interfered with the plaintiff’s FMLA rights. Under the policy, employees were assessed “absence” points. Once the point total reached a certain level, employees were subject to discipline. At the same time, the policy allowed employees to remove an absence point any time they had perfect job attendance for 30 days. The policy treated certain approved paid leaves as days worked, but reset the perfect attendance record to zero anytime approved unpaid leave was used, including FMLA leave.

Because the plaintiff frequently took approved FMLA intermittent leave, he was rarely able to meet the 30-day perfect attendance threshold, which in turn would have allowed the removal of negative attendance points. He eventually accumulated enough negative points to trigger his termination. The Sixth Circuit found that his inability to achieve perfect attendance because of his frequent use of intermittent leave may have interfered with his FMLA rights.

A copy of the Sixth Circuit’s decision is available online.

Members of the Center for Workplace Compliance (CWC) can read more here.