Sixth Circuit Reverses Employer’s Judgment on FMLA Claim When Policy Penalized Employees Taking FMLA Leave Differently Than Other Employees on Unpaid Leave

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an FMLA claim because the employer’s perfect attendance system (which reduced attendance points under its disciplinary policy) made exceptions for pre-scheduled leave (i.e., holidays, military leave, jury duty, bereavement leave, and union leave), but not FMLA leave.  Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6^th Cir. 2019).  The employer’s no-fault attendance system did not assess attendance points for FMLA absences, but would only “roll back” attendance points after 30 consecutive days of perfect attendance under its system (which did not count FMLA absences in calculating perfect attendance).  The plaintiff had been fired under the no-fault attendance policy and argued that he would not have been terminated if the employer had given him credit for perfect attendance when he took FMLA leave.  The Court found that “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.”  In short, " FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, [the plaintiff] was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way."


According to the Court’s opinion, the employer utilized a no-fault attendance policy which did not assess points for FMLA absences.  The plaintiff exercised his FMLA rights in connection with his migraine headaches, which caused him to miss a few days of work each month.  The employer would drop points from an employee’s attendance record for every 30 consecutive days that the employee had perfect attendance.  As mentioned, an employee could be absent for various approved absences (like holidays, vacations, bereavement leave, jury duty and military leave) and still get credit for perfect attendance because these issues were treated as days worked  However, FMLA leave was not considered to be perfect attendance and was not treated as days worked.  


Whenever the plaintiff took a day off for FMLA leave, the 30-day calendar restarted for purposes of calculating perfect attendance.   Although taking FMLA leave did not add points to his disciplinary record, it re-started the perfect attendance clock. When he reached 12 attendance points (for non-FMLA issues), he was terminated.  His union did not pursue arbitration because his termination did not violate the bargaining agreement.   It was undisputed that the plaintiff received all FMLA leave which he requested.

It is considered interference for purposes of the Act for employers to use the taking of FMLA leave as a negative factor in employment actions.  29 C.F.R. § 825.220(c).  To prevail on his FMLA interference claim, [the plaintiff] must show that taking FMLA-protected leave was used as a negative factor in defendant’s decision to terminate him.  The sole issue on appeal is whether [the employer]’s “Attendance Point Reduction Schedule” violates the FMLA by serving as a “negative” factor in defendant’s decision to terminate Dyer.

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The plain language of the FMLA is clear.  “At the expiration of the employee’s leave period, she must be reinstated to her position or to a position equivalent in pay, benefits, and other terms and conditions of employment.”  . . . . Therefore, denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.  Put differently, “attaching negative consequences to the exercise of protected rights surely ‘tends to chill’ an employee’s willingness to exercise those rights.”   . . . .  Resetting [the plaintiff's] perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. . . . Although the policy here does not formally hinge point reduction on not taking FMLA leave, the practical result is the same for someone like Dyer who must take frequent intermittent FMLA leave.

Based on the language of the Act and the Department of Labor regulations, point reduction can be viewed as an employment benefit, the accrual of which, like the accrual of other benefits or seniority, must be available to an employee upon return from leave.  See 29 U.S.C. § 2614(a)(2).  The regulations state that “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.”  29 C.F.R. § 825.215(d)(1).  Whereas an employee is not entitled to “accrue any additional benefits or seniority during unpaid FMLA leave[,] [b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  Id. § 825.215(d)(2).  The FMLA defines “employment benefits” expansively to mean “all benefits provided or made available to employees by an employer, including . . . sick leave, [and] annual leave,” whether provided by practice or written policy.  See 29 U.S.C. § 2611(5).  Point reduction fits within this definition, because it is both a benefit Ventra Sandusky affords its employees to flexibly manage their absences, and because the reduction of a point effectively awards an additional day of allowed absence, akin to awarding sick leave.  Consistent with this approach, the Seventh Circuit has held that “wiping a point off the absenteeism slate is indeed an employment benefit.”  Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010).  In other words, [the plaintiff's] FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.

In two separate opinion letters, the most recent of which was issued in August 2018, the Department of Labor applied these regulations to no-fault attendance and point-reduction policies and stated that accrual toward point reduction must, at the very least, be frozen during FMLA leave.  In its 1999 opinion letter, the Department of Labor opined that an employer’s FMLA obligation to restore an employee to the same or equivalent position includes the obligation to restore the number of days accrued toward absentee point reduction.   . . . . It clarified the point by example:  “If the employee had 45 days without a recordable [absence] at the time the unpaid FMLA leave commenced, the employer would be obligated to restore the employee to this number of days credited without an [absence].”  Id.  In 2018, the DOL reaffirmed the point, approving a policy under which “the number of accrued points remains effectively frozen during FMLA leave.”  . . . . Although these letters are not binding, they are entitled to persuasive effect.

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In addition, [the employer] is not entitled to summary judgment if FMLA leave is treated less favorably than other equivalent leave statuses.  The district court held that the policy did not violate the Act because “equivalent” non-FMLA leave also interrupts the 30-day window.  But, under [the employer]'s policy, there is a disputed issue of material fact as to what constitutes “equivalent” leave and whether any equivalent leave statuses similarly reset the point-reduction clock.  Although neither the FMLA nor its implementing regulations define “equivalent leave status,” the regulations imply that equivalency turns on whether the leave is paid or unpaid.  For example, in describing the equivalency principle, the regulations state that “if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave.”  See 29 C.F.R. § 825.220(c) (emphasis added).  At her deposition, [an] employee, Catherine Cupal, stated that under the collective bargaining agreement, active duty military leave and some forms of union leave are both unpaid leave and yet, unlike FMLA leave, they do not restart the 30-day point-reduction clock.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

What’s New with the FMLA

I was speaking at the Columbus Bar Association’s Labor & Employment Committee last week about complex medical leave issues (i.e., when the FMLA, ADA, Workers compensation and/or disability pay overlap).  In preparation, I learned that the DOL had issued two new Opinion Letters discussing the FMLA.  In addition, the DOL updated the FMLA medical certification forms, meaning that the current forms (which did not change at all, including keeping the last revised date as May 2015) will not expire until August 31, 2021.  To be sure that you are using the most current Medical Certification forms, download the forms from the DOL’s website and confirm that the August 31, 2021 date is in the upper right hand corner.

As for the Opinion Letters, the DOL WHD Acting Administrator confirmed that medical leave to have surgery to donate an organ is considered to be a serious health condition:

An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115.  Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital.  Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.”  Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.

In the other Opinion Letter,  the Acting Administrator agreed that an employer could suspend the no-fault attendance policy during an employee’s FMLA leave as long as it did not discriminate against the use of FMLA leave by permitting it to expire during other types of medical leaves.   In the employer’s question, the employer’s no fault attendance policy imposes points for non-FMLA absences and tardiness and automatically terminates employees who accrue 18 points within twelve months.  The points are frozen during FMLA leave and do not drop off while the employee is on FMLA leave.  The twelve month period is also extended by the duration of the FMLA leave.

The Acting Administrator noted that “‘[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.”  Moreover, FMLA leave does not entitle an employee to a superior position than employees who miss work for non-FMLA reasons.

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).

The Opinion Letter interpreted the policy as rewarding employees for working by removing points, and therefore, missing work for FMLA leave meant that the employer was not required to reward the employee by removing non-protected attendance points.

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, the 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). 

Because the employer treated workers compensation leaves the same as FMLA leave – i.e., employees do not accrue points and the points are frozen while the employee is absent on leave – there was no evidence of unlawful retaliation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Begins 2015 Affirming Employer Judgment in Two FMLA Cases

Last week, the Sixth Circuit affirmed summary judgment for employers in two cases addressing basic FMLA issues:  an employee’s duty to give advanced notice and what “leave” means.   In the latter case, the Court held that working from home is still working and is not “leave” covered by the FMLA.  Therefore, an employee’s request to work from home – even when motivated by a purported medical reason – is not covered by the FMLA.  Anderson v. McIntosh Construction LLC, No. 14-5783 (6^th Cir. 1-8-15). Further, if the employee’s absences pre-date when she qualified for FMLA leave, the employer is not precluded by the FMLA from basing a termination decision on those absences.  In the earlier case, the Court held that an employee did not prove that the employer had a practice of waiving advance notice of the need for FMLA leave, and therefore, the employee’s failure to call off every day of his absence as required by the collective bargaining agreement disqualified him from FMLA leave.  Cundiff v. Lenawee Stamping Corp., No. 14-1596 (6^th Cir. 1-7-15).

According to the Court’s opinion in Anderson, seven months after being hired, the plaintiff requested and was permitted to work from home one day each week because she said she needed a break from workplace stress created by a co-worker (who criticized her work and suggestions).  Within a few months, the employer ultimately decided to replace her because of these and other absences related to medical appointments.  When the plaintiff discovered (around her first–year anniversary date) that her replacement was being recruited, she resigned a few months later due to a hostile work environment, obtained other employment and brought suit alleging violations of the FMLA.  The Court rejected her FMLA interference claim because the employer was never obligated to offer her FMLA leave if she never requested it or put it on notice that she needed it.  Moreover, her requests to work from home could not constitute an FMLA request or notice of a need for FMLA leave because she would still be working.  FMLA leave implies a need for a leave of absence from working – not just a leave of absence from the employer’s workplace.  [That issue is the subject of an ADA case against Ford Motor Company pending before the entire Sixth Circuit]. 

The Court also rejected the plaintiff’s argument that the employer interfered with her right to FMLA leave by firing her based in part on her medically-related absences because those absences occurred before the plaintiff qualified for FMLA leave by working for the employer for at least twelve months.  

Her retaliation claim failed for the same reasons:  she could not show that ever requested or took FMLA-protected leave.  None of her activities were protected by the FMLA before the employer decided to fire and replace her.

In Cundiff, the employer’s attendance policy (which was also contained in the CBA) provided that employees must call off work prior to the start of their shift and failure to call off work for three consecutive days would lead to termination.  The plaintiff called off work for two days for “personal reasons” and then did not report or call off from work for at least three consecutive days, which lead to his being terminated. He retroactively obtained a medical excuse from his physician (dated after his termination date) documenting a genuine serious medical condition and attempted to get his absences excused.  He claimed that the employer had an unwritten practice of waiving advance notice of a need for FMLA, but apparently was unable to prove it.  The Court found the employee did not qualify for FMLA leave because he failed to provide advance notice of his need for leave pursuant to the employer’s customary call-off policy.  Therefore, the employer could not have unlawfully interfered with the plaintiff’s FMLA rights because the employee did not qualify for FMLA leave. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Plaintiff Cannot Avoid Termination for Violating Attendance Policy Simply by Engaging in Protected Conduct and Claiming Retaliation.

The Sixth Circuit recently affirmed summary judgment in favor of an employer who terminated the plaintiff for excessive tardiness in accordance with its detailed policy even though the plaintiff had recently taken FMLA leave and requested a reasonable accommodation under the ADA. Gembus v. MetroHealth System, 07-3542 (8/27/08). The court assumed, without deciding, that the plaintiff had proved her prima facie case of showing that she had been terminated because of her protected conduct (i.e., taking FMLA leave and requesting an accommodation). However, it concluded that she failed to show that the employer’s non-discriminatory explanation – that she fired for violating its attendance policy – was false or pretextual (i.e., a disguise for unlawful retaliation).

The employer’s attendance policy provided that an employee receives a demerit for every tardiness. Within a twelve month period, the employee is counseled for receiving three demerits, receives a verbal warning for five demerits, a written warning for ten demerits, a final written warning after 15 demerits and is subject to termination after 20 demerits. Demerits drop off following the passage of twelve months since the underlying tardiness.

In this case, the plaintiff had a record of chronic poor attendance. By July 2001, she had accumulated 23 demerits (3 more than permitted under the policy) and was suspended without pay for one day instead of being terminated. However, she reached the final written warning stage of disciplinary action for attendance violations in each of the following years in 2002, 2003 and 2004. In March 2005, she took a two-month FMLA leave because of fibromyalgia and chronic fatigue syndrome. Upon returning to work, she requested to be relieved of her rotating schedule and to, instead, receive steady day shifts. She apparently encountered hostility for making the request, which was temporarily honored while the employer determined whether she was entitled to such an accommodation under the ADA. In the meantime, she continued to be late to work and received another final written warning on May 2, 2005.

On June 13, 2005, despite working stead day shifts, the plaintiff accumulated a total of 21 demerits for tardies within the last twelve months and was terminated for poor attendance on the same day. She alleged that she had been terminated for exercising her statutory rights (to take FMLA leave and request a reasonable accommodation) and not because of her chronic tardiness because she had only been suspended in 2001 when she had 23 tardies (i.e., 2 more tardies than she had accumulated in 2005 when she was fired). She never alleged that her tardiness was caused by her physical impairments or alleged disability.

The court concluded that that the hostility the plaintiff encountered after requesting steady day shift assignments was insufficient to prove pretext because it did not address the admitted fact that she violated the attendance policy. “[I]t does not refute the evidence that [the plaintiff] had twenty-one tardiness points in violation of [the employer’s] policy, which allowed for her termination, or show that tardiness was not the reason fro her termination.”

The court also noted that her request for an accommodation was protected conduct even if it was ultimately determined that she did not have a disability covered by the ADA. “A plaintiff may prevail on a disability-retaliation claim even if the underlying claim of disability fails.” Nonetheless, the plaintiff’s evidence of hostility and the suspicious timing of her termination (within two months of returning from FMLA leave and making her shift request) did not prove that the employer’s explanation was false or pretextual. “Her evidence of temporal proximity alone is insufficient to meet this burden because it does not address [the employer’s] explanation for her termination, tardiness. Furthermore, her evidence of the hostility she encountered when she requested an accommodation to work the day shift does not address [the employer’s] reason for her discharge because it does not rebut the uncontradicted evidence that [she] accumulated twenty-one tardiness points in violation of [the employer’s] policy, which allowed for termination.”

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0528n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.