A no-fault attendance program is the epitome of equal treatment—the employer does not judge whether an absence is for a good or bad reason and gives all employees the same number of absences.

But then the FMLA came along and guaranteed eligible employees certain time off and prohibited an employer from interfering with that entitlement. Employers with no-fault programs responded with somewhat of an oxymoronic anomaly—everyone still gets the same number of absences but absences covered by the FMLA do not count.

As the Seventh Circuit’s recent decision in Bailey v. Pregis Innovative Packaging, Inc. illustrates, merely adding the FMLA exception does not insulate a policy from an FMLA challenge. Under Pregis’ policy, an employee received a point for each non-FMLA absence and the point was removed after 12 months of work. The plaintiff claimed that since FMLA leave is not included in calculating the 12 months of work, the policy retaliates against FMLA-leave takers because it takes longer for them to “wipe the slate clean” than it would take for a non-FMLA-leave takers.

The Seventh Circuit affirmed the district court’s rejection of the plaintiff’s argument. The FMLA states that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced” but the FMLA does not entitle an employee to the “accrual of any…employment benefits during any period of leave.” Judge Posner concluded that “wiping a point off the absenteeism slate” is “an employment benefit” but that it does not accrue until 12 months after an absence. “Absenteeism forgiveness,” like seniority, is a reward for working, he said. 

          All employers with no-fault attendance policies should heed the messages from this case—just excepting FMLA-covered absences from the policy does not insulate the policy from challenge, and any aspects of the policy that might be construed as adversely affecting FMLA-leave takers must be for the purpose of rewarding employees for their commitment to work, and not punishing employees for taking FMLA leave.