FMLA2018-1-A — “No-fault” attendance policies and roll-off of attendance points

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

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FMLA2018-1- A
August 28, 2018
Dear Name*:
This letter responds to your request for an opinion concerning whether an employer’s no-fault
attendance policy violates the Family and Medical Leave Act (FMLA). The policy effectively
freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points
that the employee accrued prior to taking his or her leave. As explained below, such a policy
does not violate the FMLA, provided it is applied in a nondiscriminatory manner. This opinion
is based exclusively on the facts you have presented. You have represented that you do not seek
this opinion for any party that the Wage and Hour Division (WHD) is currently investigating, or
for use in any litigation that commenced prior to your request.
BACKGROUND
Under your employer’s attendance policy, employees accrue points for tardiness and absences.
Employees do not accrue points for certain absences, however, including absences that are
FMLA-protected, as well as absences for workers’ compensation, vacation, and other specified
reasons. An employee is automatically discharged if he or she accrues eighteen points.
Points remain on an employee’s record for twelve months of “active service” after accrual,
although the policy does not define “ active service.” According to your letter, an employee’s
points are extended for the duration of his or her FMLA leave. Thus, an employee returns from
FMLA leave with the same number of points that he or she accrued prior to the leave, and the
points may remain on his or her record for more than twelve months. Your letter indicates that
the same is true concerning other types of leave for which employees do not accrue points, such
as workers’ compensation-related leave.
GENERAL LEGAL PRINCIPLES
The FMLA prohibits employers from “interfering with, restraining, or denying” an employee’s
exercise of FMLA rights. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(a)(1). It also prohibits
employers from “discriminating or retaliating against an employee... for having exercised or
attempted to exercise FMLA rights.” 29 C.F.R. § 825.220(c). Employers, therefore, cannot
consider “FMLA leave as a negative factor in employment actions” and must provide an
employee who takes FMLA leave with the same benefits that “an employee on leave without pay
would otherwise be entitled to [receive].” Id. Similarly, “FMLA leave [cannot] be counted
under no-fault attendance policies,” meaning employees cannot accrue points for taking FMLA
leave under a no-fault attendance policy. Id.; see also WHD Opinion Letter FMLA2003-4
, 2003
WL 25739620 (July 29, 2003). “‘[N]o- fault’ attendance policies [] do not necessarily violate the
FMLA as long as points are not assessed for employees who are absent due to any FMLA
qualifying reason.” WHD Opinion Letter FMLA2003-4, 2003 WL 25739620, at *1.

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The FMLA does not, however, entitle an employee to superior benefits or position simply
because he or she took FMLA leave. Cf., e.g., 29 C.F.R. § 825.214 (stating, with respect to
reinstatement, that “an employee is entitled ... to the same position the employee held when
leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and
conditions of employment”). Likewise, an employee “may, but is not entitled to, accrue any
additional benefits or seniority during unpaid FMLA leave.” 29 C.F.R. § 825.215(d)(2); see also
WHD Opinion Letter FMLA-100
, 1999 WL 1002428, at *2 (Jan. 12, 1999). An employee is
also not entitled to additional benefits or payments that are contingent on achieving a specified
goal that the employee was unable to achieve because he or she took FMLA leave. 29 C.F.R .
§ 825.215(d)(5); see also Preamble to the Final Rule, 73 Fed. Reg. 67934, 67985 (Nov. 17,
2008). An employee’s entitlement to benefits (other than group health benefits) is “determined
by the employer’s established policy for providing such benefits when the employee is on other
forms of leave (paid or unpaid, as appropriate).” 29 C.F.R. § 825.209(h); see also 29 C.F.R.
§ 825.215(d)(1);
WHD Opinion Letter FMLA-56, 1995 WL 1036727, *1 (Mar. 28, 1995) (“If,
for example, an employee on leave without pay would otherwise be entitled to a particular
benefit, that same benefit would be required to be provided to an employee on unpaid FMLA
leave.”).
OPINION
Removal of absenteeism points is a reward for working and therefore an employment benefit
under the FMLA. Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750-51 (7th Cir.
2010); WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999). As you
describe in your letter, t he number of accrued points remains effectively frozen during FMLA
leave under your employer’s attendance policy. An employee neither loses a benefit that accrued
prior to taking the leave nor accrues any additional benefit to which he or she would not
otherwise be entitled. WHD’s longstanding position is that such practices do not violate the
FMLA, as long as employees on equivalent types of leave receive the same treatment. WHD
Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999) ( stating that the FMLA
would permit an employer to “neither count the FMLA leave period towards an attendance
control policy for potential termination, nor credit the unpaid FMLA leave towards the
recordable time for dropping such points,” as long as the employer treated other equivalent types
of leave in the same manner).
If the employer, however, counts equivalent types of leave as “active service” under the no-fault
attendance policy—meaning the employer counts such leave toward the twelve months
necessary to remove points—then the employer may be unlawfully discriminating against
employees who take FMLA leave. 29 C.F.R . § 825.220(c) (requiring that employees who take
FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave). The

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information you provided did not suggest that the employer treats equivalent types of leave as
“active service,” so we have no indication that the above-described policy violates the FMLA.
We trust that this letter is responsive to your inquiry.
Sincerely,

Bryan Jarrett
Acting Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C. §
552(b)(7).