Quirky Question #190: Perfect Attendance Policies — ADA and FMLA Compliant?

Quirky Question # 190:

My company is a firm believer in rewarding good behavior as opposed to punishing bad behavior. Along those lines, we give bonuses to employees who maintain perfect attendance over the course of a year. For employees who do have absences, we apply a “no-fault” system that grants employees a set number of days that can be missed each year for whatever reason, so that our supervisors and HR staff do not waste time checking in on the reasons for every absence.

Of course, our employees periodically take different types of leave from work, including leave under the Family and Medical Leave Act and the Americans With Disabilities Act. An employee who recently took FMLA leave advised us that she does not think she should be disqualified from the perfect attendance bonus because she did have “perfect” attendance when she wasn’t forced to be out because of her health issue. Another employee who took some leave for a disability issue claims her missed days should not apply to her annual 15-day threshold, again because the leave was not by choice.

Neither employee’s request seems valid to me. How can an employee who misses work have perfect attendance? And what’s the point of a no-fault attendance policy if certain missed days count, while other do not?


One Response to “Quirky Question #190: Perfect Attendance Policies — ADA and FMLA Compliant?”
  1. avatar L. Williams says:

    In the past, the U.S. Department of Labor’s rule was that an employee could not be disqualified from an attendance incentive plan for taking unpaid FMLA leave, although employees on FMLA leave could be treated the same as other employees on non-FMLA leave with regard to a bonus based on performance, such as a monthly production goal.

    Effective January 16, 2009, the rule changed. The Labor Department was concerned that the prior rule encouraged employers to eliminate perfect attendance awards because of the inequity perceived by coworkers of allowing employees who had taken FMLA leave to be eligible for these awards. Under the new rule, if a bonus or other payment is based of the achievement of a specified goal, such as perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied as long as employees on non-FMLA leaves are treated similarly. For example if an employer’s policy does not disallow an attendance award to an employee who takes vacation leave, then the employer cannot deny the award to an employee who substitutes paid vacation leave for FMLA leave.

    Source: 29 CFR 825.215(c)(2); 73 FR 67934, November 17, 2008.

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