Attendance policies and FMLA: New DOL guidance

In recent guidance, the Dept. of Labor (DOL) spelled out how attendance policies can cross the line into Family and Medical Leave Act (FMLA) violations.

Specifically, Field Assistance Bulletin 2022-2 discussed no-fault attendance policies. With such policies, employers don’t distinguish among reasons for leave but instead give employees points for every absence.

No-fault attendance plans

Here’s the key: The regs don’t allow employers to count FMLA leave under no-fault attendance policies.

The March 10, 2022 guidance includes an example of a father who’s absent from work for three days to care for his young daughter in the hospital.

In the scenario, the father is assigned three points as part of his employer’s no-fault attendance plan. Under that plan, employees are disciplined or terminated once they reach a certain number of points.

As a result, the application of the no-fault attendance plan to his situation violates the FMLA’s anti-retaliation provisions. That’s because an employer can’t take adverse action against an employee for using FMLA leave.

Avoiding adverse action

According to the DOL, taking an adverse action means doing anything that attempts to discourage an employee from speaking up about FMLA violations. Some examples:

• termination
• the confiscation of a worker’s passport or other immigration documents
• the reduction of work hours or rate of pay
• changing someone’s shifts
• the elimination of premium pay
• giving someone a demotion.

Also, even subtle steps, such as excluding an employee from a regularly scheduled meeting, can fall under the category of adverse action.

So, to minimize the risk of FMLA violations at your organization, you may need to increase the frequency of training for supervisors.