Employers subject to the Family and Medical Leave Act (FMLA) must allow covered employees up to 12 weeks of leave per year for certain needs, including the employees’ own “serious health condition.” The FMLA and its implementing regulations further provide that an employer subject to the FMLA cannot interfere with an employee’s exercise of rights under the statute. In addition, when an employee concludes her FMLA leave, the employer must return her to her previous position or one equivalent in pay, benefits and other terms and conditions of employment. This requirement has been interpreted by federal courts as precluding an employer from attaching any manner of “negative consequence” for taking protected leave under the FMLA.

Most employers subject to the FMLA clearly understand these basic concepts and genuinely strive to abide by them. The “no negative consequences” rule is most often on display when employers assess employee attendance under various forms of attendance policies, including “no fault” attendance policies. Again, most employers understand that in order to comply with the “no negative consequences” rule, FMLA leave cannot be counted as an absence for disciplinary purposes under attendance/absence policies. The employee’s absence should instead be treated as excused and non-disciplinary, just as would paid vacation, jury duty, bereavement leave, etc.

A very recent decision of the United States Court of Appeals having jurisdiction over Tennessee provides a bit more instruction – and reason for exercising caution – when evaluating FMLA leave under policies that provide credits for perfect or good attendance. In that case, the employer had a “no fault” attendance policy providing that if an employee accumulated a certain number of points, she would be terminated. The policy did not count certain types of excused leave, including FMLA leave, as absences under its policy. In this regard, therefore, the employer was doing exactly the right thing under the FMLA, i.e., applying no “negative consequences” to its employee’s exercise of FMLA leave.

The employer’s no fault attendance policy contained an additional provision designed to promote good attendance. Under that, an employee could obtain a credit to reduce the total number of accumulated absentee points for each month of perfect attendance. Excused absences due to vacations and other paid forms of leave counted as a day worked for perfect attendance credit. FMLA leave, however, was not counted as a day worked toward that credit.

One of its employees was terminated under the no fault attendance policy for accumulating the requisite number of absences triggering automatic termination. The employee complained that he had to take regular intermittent FMLA leave due to a medical condition, which was approved and never questioned by the employer. The employer did not, however, treat the approved FMLA leave as a day worked under the perfect attendance credit policy. Consequently, whenever the employee missed a day of work due to FMLA leave, his accrued number of perfect attendance days ended and he had to start back at zero when he returned to work.

The employer contended that it did not violate the FMLA since it was not treating its employee negatively for taking FMLA leave. It did not question the need for the leave, it approved the leave request, it returned the employee to his regular position, and his leave did not count as a missed day under the attendance policy. The employee, on the other hand, argued that while it was true that the employer did not add any points for FMLA absences, it nonetheless classified the leave as an absence that reset the perfect attendance bonus clock back to zero.

The court sided with the employee, finding that the employer violated the FMLA. In reaching this result, the court relied upon federal regulations which provide that while an employee is not entitled to earn or accrue additional benefits or seniority during FMLA leave, the benefits the employee earned or accrued at the time FMLA leave began must be available upon returning from leave. The Court found that the employer could have frozen the accrual of good attendance points for the period of time the employee was on FMLA leave, but it should not have reset the clock back to zero upon his return to work.

I have no doubt the employer truly believed it was complying with the FMLA by not counting the FMLA absence as an unexcused absence or demerit under the attendance/absenteeism policy. The employer simply failed to follow the “no negative consequences” requirement to its logical conclusion.