FMLA, perfect attendance and getting sued (and losing)

September 19th, 2019

Fiona Ong at Shawe Rosenthal


Perfect attendance

Perfect Attendance Program Violated the FMLA

The U.S. Court of Appeals for the Sixth Circuit found that a company’s perfect attendance program, which excused paid time off but not Family and Medical Leave Act leave or certain other unpaid time off, violated the FMLA.

In Dyer v. Ventra Sandusky, LLC, the company implemented an “Attendance Point Reduction Schedule” under which points accumulated under a no-fault attendance policy would be reduced for 30 days of perfect attendance. Under the program, paid time off for vacation, bereavement, jury duty, and holidays counted as “time worked,” as did unpaid time for military duty and union leave; however, the 30-day clock was reset for FMLA leave and other unpaid leaves. An employee who took FMLA leave for migraines was eventually terminated because of his non-FMLA attendance. He sued, arguing that each time he used FMLA, his 30-day clock was reset, which interfered with his ability to have his attendance points reduced.

The Sixth Circuit found that, by resetting the clock every time the employee took FMLA, the employer denied him the point reduction benefit enjoyed by employees not taking FMLA. Consequently, the perfect attendance program interfered with the employee’s rights to take FMLA. The Sixth Circuit found it an open question whether FMLA leave was treated the same as other equivalent non-FMLA leaves.

This case emphasizes the need for employers to ensure that those on FMLA enjoy the same benefits of employment as other employees.


This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website.