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Is There Fault With Your No-Fault Attendance Policy?

Some employer attendance policies use a tally system where employees accrue “points” for absences or tardiness. If an employee hits a certain number of points, disciplinary action is taken. Points typically have a set lifespan — say, a year — after which the point expires and is removed from the employee’s tally.

These “no-fault” attendance policies — sometimes called “absence control” policies — are popular because they decrease discretionary decision making, and therefore have the appearance of fairness.

However, as with any attendance policy, employers cannot simply apply the policy automatically. In applying these policies, they must be careful not to violate leave laws, such as the Family and Medical Leave Act (FMLA). An opinion letter issued by the U.S. Department of Labor on August 28, 2018, addressed a niche issue with “no-fault” policies: specifically, whether an employer’s no-fault attendance policy violated the FMLA because it “froze” an employee’s attendance points while they were on FMLA leave. In other words, is a no-fault attendance policy discriminatory against a person taking FMLA leave because the duration of their FMLA leave does not allow that person’s points to expire per their usual schedule under the attendance policy?

In answering this question, the DOL concluded that “such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.” In other words, if the points of an employee on FMLA leave are frozen, the points of other employees on equivalent types of leave, such as a leave covered by workers’ compensation, must also be frozen.

Employers should check their policies for compliance with this principle, and give thought to whether certain types of leave offered are equivalent. The DOL’s opinion letter also highlights the importance of educating supervisors regarding such policies; simply setting up the policy may not be enough. For example, supervisors may need training to ask appropriate questions about an employee’s leave to ensure compliance with the DOL’s guidance. Alternatively, open lines of communication between supervisors and other employees managing leave and benefits can help transmit necessary information. Employers should consider reviewing these methods of communication of effectiveness, and training supervisors to develop their understanding of these policies.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.