Employers must carefully navigate Family and Medical Leave Act (“FMLA”) pitfalls when administering attendance policies.  As illustrated by the Sixth Circuit’s decision in Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. Aug. 8, 2019), one misstep can lead to potential FMLA liability.


Dyer worked as a technician for automotive supplier Ventra Sandusky.  Dyer suffered from migraine headaches that often prevented him from working.

Ventra Sandusky’s no-fault attendance policy assessed points to employees for absences.  At 11 points, the policy called for termination.  The policy expressly excluded FMLA absences from the point-accumulation system, and it was undisputed that Dyer never received any points for taking FMLA leave.

Ventra Sandusky also maintained an Attendance Point Reduction Schedule—allowing employees to reduce attendance points by achieving perfect attendance for 30 days.  This policy treated time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days “worked” toward the 30-day perfect attendance requirement, and such absences did not stop or “reset” the 30-day clock.  In contrast, the point reduction schedule did not count FMLA leave, and other kinds of unpaid leave such as disability, as time “worked” toward the 30-day perfect attendance streak.  For example, if an employee worked three days, took the fourth day off for an FMLA-qualifying purpose, and returned to work on the fifth day, his attendance streak restarted at one day worked, rather than four.

Dyer used intermittent FMLA due to his migraines on several occasions.  Ventra Sandusky always approved his FMLA leave, and he was never assessed any points for taking FMLA leave.  In 2016, Ventra Sandusky terminated Dyer for accumulating 12 points.  Claiming that he would have stayed below 11 points, and thus not been terminated, if his perfect attendance streak did not stop and restart each time he took FMLA leave, Dyer sued Ventra Sandusky for FMLA interference.  The trial court granted summary judgment in favor of Ventra Sandusky.

The Sixth Circuit reversed and remanded.  The Court relied on the regulations interpreting the FMLA, which provide “[b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  29 C.F.R. § 825.215(d)(2).  The Court held that point reduction could be viewed as an employment benefit, the accrual of which must be available to an employee upon return from leave.  Thus, “Dyer’s FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.”  The Court rejected Ventra Sandusky’s argument that no benefit actually accrued until the 3oth day when an attendance point was dropped.

In addition, the Court explained that Dyer could prevail on his claim by showing Ventra Sandusky treated FMLA leave less favorably than other equivalent leave statuses.  There were disputed issues of material fact as to what constituted “equivalent” leave under the policy and whether equivalent leave statuses similarly reset the point-reduction clock.


While employees are not entitled to accrue benefits while on FMLA leave, the benefits they accrued before taking leave must be available when they return.  The Sixth Circuit and other courts have broadly interpreted the term “benefits accrued.”  With this expansive interpretation in mind, employers should closely examine their policies and procedures to ensure that an employee’s FMLA leave does not negatively affect accrued benefits.  Employers also must be careful not to treat FMLA leave less favorably than other equivalent leave statuses—bearing in mind that whether a type of leave is “equivalent” may be up for debate.