The federal Department of Labor has issued a new opinion letter regarding continuation of benefits and other terms and conditions of employment during FMLA leave. The employer in question in the letter has a “no fault” attendance policy, where staff members were given points if they were tardy or absent, and at 18 points were terminated. Points would reset after 12 months of “active service.”
The case posed these questions to the DOL:
Can the employer pause the active service requirement when an employee is gone on FMLA leave?
If so, can the employer keep the negative attendance points on an employee’s record longer than 12 months if they pause the “active service” when the employees aren’t working?
The DOL Said Yes to Both
This is significant to schools and ESUs, because the question of whether and to what extent employee benefits continue through FMLA leave is very common. In general, employers are not allowed to interfere, restrain, or deny FMLA leave that has been duly earned, including by disfavoring employees who have taken FMLA leave. As you know, benefits like health insurance but not salary must be continued through an FMLA leave. However, employers are not required to issue benefits to employees that have taken FMLA leave that are not otherwise available to staff outside of those required to be provided specifically by the FMLA.
In this particular case, employees who were not working, for whatever reason, were not earning time toward the removal of attendance points. So, as long as the point system applied to all types of leave in the same way by this employer, it was permitted under the FMLA.
If you have an objective attendance system, this case is directly applicable. Even if you don’t it provides a way to think through extended times employees are not working for things like vacation, worker’s compensation, and during the summer. FMLA leave should not receive worse or better treatment than other leaves for benefits related to things like attendance requirements.
In addition to the opinion letter, the Wage and Hour Division of the DOL has bestowed new FMLA forms on us all. These forms will appear identical to the old forms at first glance, but if you look in the top right corner you will see that these new forms have an updated expiration date. Links to the new DOL forms are below, and have also been updated in our Policy Service “forms” page.