By Pension and Benefits Editorial Staff
An employee who was fired for excessive absences could not claim FMLA interference because his employer did not reduce his accumulated absences under its absence reduction policy while the employee was on FMLA leave, a federal district court in Ohio ruled. In granting the employer’s motion for summary judgment, the court found that the employer’s absence reduction policy, predicated on 30 days of perfect attendance, which did not include time spent on FMLA leave, was a benefit to which the employee was not entitled while on FMLA leave.
Termination for excessive absences. The employee, an hourly worker whose employment was governed by a collective bargaining agreement, was terminated by his employer for accumulating 12 points under the company’s no-fault attendance policy. Under the policy, an employee accrued between one-half and one and one-half points for absences, excluding several types of absence such as FMLA leave. The company consistently enforced its policy, which called for termination once an employee accumulated 11 points.
Absence reduction policy. Under the CBA, an employee could reduce his points with perfect attendance for 30 days. Vacation, holidays, jury duty, bereavement leave and military service, counted as days "worked" toward the 30-day count. However, FMLA leave could not be used for the 30-day count. Instead, FMLA leave stopped the 30-day count, which started again at day one upon the employee’s return.
Intermittent FMLA leave. The employee took intermittent FMLA leave for migraine headaches. He claimed that had the company treated his FMLA leave as it did vacation and other types of absences that counted toward a 30-day perfect attendance record, then he would have had fewer than 11 points, and would not have been terminated. The employee maintained that the company terminated him only because its policy did not count his FMLA leave toward the 30-day count. The employee sued, claiming FMLA interference. In response, the employer moved for summary judgment.
Absence reduction a benefit not subject to FMLA. The court granted the employer’s motion, finding that the point removal policy involving the 30-day count was a benefit employees earned for working. The court first concluded that the removal of points was not a bonus like a pay bonus, but rather a benefit under the FMLA. The FMLA did not entitle employees to accrue any employee benefits while on FMLA leave, and so the company was permitted to withhold the removal of attendance points for an employee absent due to FMLA leave.
Although the employee could not be penalized by being deprived while on leave of a benefit he earned, he could not accrue benefits while on leave that could only accrue while working. The employer did not impose discipline for FMLA leave. Its policy would have put the employee’s job in jeopardy only if he accumulated a certain number of points for absences that were not protected by the FMLA. The employer did not add points for absences while the employee was using FMLA leave. Accordingly, the employee’s FMLA leave merely interrupted the point removal process, and the employer did not violate the FMLA by withholding a benefit that the employee, while on FMLA leave, did not earn.
SOURCE: Dyer v. Ventra Sandusky, L.L.C., (N.D. Ohio), No. 3:16CV2817, August 6, 2018.
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