Sixth Circuit Rules Some No-Fault Attendance Policies May Violate FMLA

The Sixth Circuit Court of Appeals has ruled that some “no-fault” attendance policies may violate the Family and Medical Leave Act (FMLA), depending on how they treat time taken off under the FMLA. While no-fault policies are seen in many places as preferable to divided sick and vacation days, their implementation may actually discourage people to take off time they’re legally entitled to. When that happens, an employer may be held liable.

The case in question,  Dyer v. Ventra Sandusky, LLC, No. 18-cv-3802 (September 13, 2019), concerns a plaintiff who had to repeatedly take medical leave due to severe migraine headaches. His workplace was bound by a union contract that guaranteed a no-fault attendance policy, where someone would earn a certain number of “points” every time they used a sick or vacation day, with 12 points resulting in termination. For every 30-day period in which they worked without asking off, they’d reduce the number of points they had by one. The policy also allowed for certain “excused” absences, like jury duty, bereavement, union leave and holidays.

However, the no-fault policy failed to take into account the time every person is legally entitled to under the FMLA (twelve weeks of unpaid leave per year) for medical emergencies or family-related matters. Thus, even though the company approved the plaintiff’s leave under the FMLA, he was still fired once he’d accumulated 12 points from absences. As a result, the employer was made to pay damages for wrongful termination and FMLA interference.

If you have been denied the family or medical leave you are legally entitled to, or were retaliated against for taking that leave, it is important that you seek the guidance of an experienced New York employment lawyer who can protect your legal rights and advocate on your behalf. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 39 years’ experience handling the many aspects of employment law. To schedule an appointment with New York City employment lawyer Steve Mitchell Sack, call (917) 371-8000.

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