The Family and Medical Leave Act (“FMLA”) can be difficult to navigate, as an employer recently learned in Dyer v Ventra Sandusky, LLC, Case No. 18-3802 (August 8, 2019). The case involved an employee, Jerremy Dyer, who used intermittent FMLA leave for his migraines – resulting in his absence from work several days per month. The employer terminated Dyer because he surpassed the point‑threshold in the employer’s point‑based attendance system.
The employer’s system worked as follows: employees were assigned .5‑1.5 points in the attendance system based on various factors related to any absence from work. The employer terminated any employee who reached 11 or more points. Importantly, however, employees who attended work for 30 consecutive days with perfect attendance obtained a one‑point reduction in the attendance system. The problem for Dyer was that company policy provided that FMLA leave “reset” the rolling‑day‑count. For example, if an employee worked 20 consecutive days and took FMLA leave the next day, the employee’s count toward 30 consecutive days was reset to zero earned days upon the employee’s return to work. Other types of leave – military, vacations, bereavement, holidays, jury duty, etc. – did not reset the rolling‑day‑count.
As the employer argued, Dyer was not explicitly penalized for taking intermittent FMLA leave – that is, he did not accrue points for absences stemming from his FMLA absences. Nevertheless, Dyer argued, and the Sixth Circuit agreed, that the employer may have interfered with Dyer’s FMLA rights because it denied him the flexibility given to employees using other, arguably‑equivalent types of leave. The court reasoned that even though the policy did not “formally hinge point reduction on not taking FMLA leave, the practical result” was the same for Dyer, given his need to take intermittent leave every month. Consequently, the court determined that the case could proceed to a jury trial.
The case is a good reminder to carefully consider the impact of FMLA leave from all angles. While school districts do not necessarily use attendance‑based point systems, Lusk Albertson recommends, at a minimum, that HR departments ensure FMLA leave is treated the same as equivalent types of leave.
The case may be accessed here.