An employer instituted a no-fault attendance policy which allowed employees’ absence points to be reduced for each 30-day period of “perfect” attendance. An employee sued the company, based on the claim that his intermittent FMLA leave kept him from fully participating in that program.

The lower court agreed with him, but the U.S. Court of Appeals for the Sixth Circuit reversed the lower’s court’s decision, stating that the point reduction for perfect attendance may have interfered with the employee’s FMLA rights. Dyer v. Ventra Sandusky, 6th Cir., 18-3802, August 8, 2019.

Facts of the case:

  • Plaintiff Dyer worked for Ventra Sandusky, an automotive supplier, as a full-time Technician;
  • Dyer suffers from migraine headaches, which prevent him from working on multiple days each month;
  • Ventra Sandusky granted intermittent leave for those absences;
  • Ventra Sandusky has a no-fault attendance policy under which employees are assessed points for absences;
  • An individual’s employment is terminated if 11 or more points are accumulated;
  • Dyer did not receive points for his FMLA absences, but received points for other absences, excused and unexcused;
  • Ventra Sandusky allows employees to reduce accrued points, subtracting one point for each rolling 30-day period of “perfect attendance”;
  • The perfect attendance calculation is interrupted if an individual is absent for any reason, other than “Vacation, Bereavement, Jury Duty, Military Duty, Union Leave and Holidays,” none of which stop the 30-day clock;
  • In other words, those absences were counted as days “worked” for purposes of the point reduction program, and did not reset the running of the 30-day clock back to day 1;
  • However, the point reduction schedule did not count FMLA leave or other unpaid disability leaves as days “worked” toward the 30-day perfect attendance goal, so those absences did reset the 30-day clock;
  • While the company did not add points for absences due to FMLA, it classified FMLA leave as an absence that reset the 30-day clock back to day 1 after the absence;
  • Dyer was terminated for accumulating 12 points under the attendance policy;
  • He sued the company, alleging that because his FMLA absences kept him from enjoying the same benefit that certain non-FMLA employees received (an uninterrupted 30-day attendance period), the company was interfering with his FMLA rights;
  • The lower court dismissed the lawsuit, finding that because all employees on medical-related leaves were treated equally, Dyer could not support his FMLA interference claim;
  • That finding was reversed on appeal by the Sixth Circuit.

The Sixth Circuit cited to the language of the statute which says specifically that “[a]t the end of an employee’s FMLA leave, benefits must resume in the same manner and at the same levels as provided when the leave began.” In other words, Dyer’s leave could suspend the accrual of attendance days, but could not reset it to zero; when he returned to work, Dyer would begin to accrue days at the point at which he had left off.

According to the Court, “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.” It found that resetting Dyer’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.”

In essence, the Court found that Dyer was prejudiced by the policy because his ability to remain employed hinged on not taking FMLA leave, thereby interfering with those rights. The Court reversed the lower court’s decision and remanded the case back for a jury trial, pointing out that “a jury could find that Ventra Sandusky’s no-fault point-reduction scheme interfered with Dyer’s right to take FMLA leave and be restored to an equivalent position with equivalent benefits . . . upon return to work.”

This case underscores the important principal that employees on FMLA must be treated as if they have not left the workplace; their conditions of employment – with very few exceptions – must return to the level at which the employee left them at the initial time of leave.