Answers to tricky HR questions: Attendance bonuses for employees on FMLA leave?
September 5, 2008 by Jim GiulianoPosted in: Answers to tricky HR questions, Employment law, FMLA, In this week's e-newsletter, Latest News & Views, Leave, Money, Pay and benefits
Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: Do employees on FMLA leave qualify for perfect-attendance bonuses?
Question:
To cut absenteeism provide an extra incentive, we’re thinking about giving out small bonuses or other rewards for going a year without missing any days. Are we obligated to pay that perfect-attendance bonus to an employee who has taken FMLA leave but hasn’t missed days for any other reason?
Answer:
Generally, you must pay the attendance bonus. That’s according to Linda Hollinshead, an employment-law attorney with Wolf, Block, Schorr & Solis-Cohen.
For purposes of attendance, FMLA leave is treated as if the employee was there. Given that, the attendance bonus must be paid to someone on FMLA leave.
Tags: absenteeism, bonuses, FMLA
September 8th, 2008 at 2:36 pm
what about holiday pay? Our policy states that the employee must work either the day before, the day of or the day after the holiday in order to receive holiday pay unless on pre-approved vacation. Do employees on FMLA need to be consider for Holiday pay?
September 8th, 2008 at 3:07 pm
Our holiday pay policy mirrors yours. We take the holiday pay into consideration and upon the return of the employee from the leave, the “missed” holiday pay is paid out.
September 8th, 2008 at 3:29 pm
It’s pretty clear about the cases above where pay is based on attendance. FMLA is clearly treated as a day of work when it comes to bonuses tied to “perfect attendance.” But, what about merit bonuses? Specifically, it seems to me that FMLA leave may not be considered simply because the person who missed was not able to contribute to the team effort that got things done. If Tom Brady is your QB and he misses half the games, he simply can’t contribute the same as someone who played in all the games. Even though he is a recognized superstar, the fact that he isn’t in the game should mean his bonus should not be as high, based on contribution to the success of the team. I wonder if this has been tested in court?
September 8th, 2008 at 3:36 pm
The mention of Tom Brady was very accurate in terms of timing. Is this commenter prescient?
September 8th, 2008 at 3:39 pm
Very interesting. I guess now that someone has asked the question we may all be held accountable. I had always applied this to (not) adjusting benefit dates and seniority – stuff like that. This interpretation is not just for the purpose of attendance, but for compensation (paying an employee for not being there) that is not covered by concurrenly running sick or vacation time. What will the next step be… don’t tell me, I don’t want to know.
September 8th, 2008 at 3:42 pm
Hello –
FMLA is leave without pay, they would qualify for disabiliity claims – return to work as indicated under the FMLA or sooner.
Employers commitment is once an employee qualifies FMLA guidelines – and returns to work – employers must have a position for them, doh and other benefit remains the same; why pay holiday if they are not at work, they are collecting under NJ state disability or New York
September 8th, 2008 at 4:43 pm
Even though it is unfortunate that someone has to miss work due to a matter qualifying under FMLA, it does not seem fair to the other employees who work hard to be at work every day to include them in the perfect attendance bonuses. There were not at work and therefore their attendance was not perfect.
September 9th, 2008 at 6:52 am
Regarding holiday pay for us, if a person is on unpaid FMLA then they would not be paid for the holiday. If the person is on paid FMLA (using personal days, vacations days) then they would be paid. Make sure it is what is listed in your handbook.
September 9th, 2008 at 8:59 am
Our holiday policy says that an employee must be in a pay status on the day prior to the holiday, or work on the holiday (which they can “bank” the holiday to use later). If the employee is out on FMLA, or out for any other reason, our policy is consistent. If an employee is using paid sick leave the day prior to the holiday (paid FMLA or just regular paid sick leave), paid annual/vacation leave, paid military days, paid comp time, etc then they would qualify for payment of the holiday. If an employee is on “unpaid” FMLA the day prior to the holiday (and did not work the holiday), then they would not qualify for the holiday payment. We don’t pay attendance bonuses, so it would be interesting to see how that works regarding having a consistent paid/unpaid status (regardless of FMLA status).
September 9th, 2008 at 10:58 am
For now the Attendance Bonus should be paid, but pay attention to the new FMLA regulations due in January. It may change.
September 24th, 2008 at 2:56 pm
This is very interesting and got me thinking about something that recently happened to me while out on a FMLA absense…maybe someone can answer this for me. As part of my compensation package I receive a fully comped apartment. All I pay is utilities and my pet rent. While I was out on FMLA, however, I was made to pay full rent (minus a general employee discount). Is the company allowed to do this? When I questioned it I was told I had to pay rent because I wasn’t getting a physical paycheck from them anymore. Between my vacation and sick time accrued I only had about 3 weeks of my leave having a paycheck come from the company.
May 27th, 2009 at 4:04 pm
At a training seminar on the new changes the attorney conducting the seminar told the audience that even if the policy states that the employee must work the day before and the day after the holiday in order to receive holiday pay unless on pre-approved vacation that employees on approved FMLA were to receive the benefit of holiday pay just as they receive continuation of their medical benefits. Do employees on approved FMLA need to be consider for Holiday pay?
October 6th, 2009 at 10:23 am
Yes. If a person has been approved for FMLA (especially on their own illness), if they had to take an FMLA without pay the day they were sick before a Holiday…then Yes they must be paid for the Holiday (day after or before). Research the rules under “Your Rights Under the FMLA Act.” Employers are not permitted to penalize an employee for using any type of time without pay due to their illness. Penalizing someone who is sick…does that sound right or lawful? Of course not.
October 29th, 2009 at 1:10 pm
In line with what Tiffany says – when I recently worked for a big Wall Street bank, we were not allowed to take into consideration the fmla/maternity leave time an employee may take when considering year end bonus. bonus was not to be prorated in any way due to a 12 week fmla absence – they were NOT to be penalized for taking fmla leave. i know it doesn’t seem fair, and i also know the bank was very conservative in its legal interpretation of most things – but this was the policy and the practice there.
November 2nd, 2009 at 11:07 am
I just reread “Your Rights Under the FMLA Act” and the only thing I find that comes close to what Tiffany states above is this: “The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.” I think the key word here is “prior”. This leaves me still unclear as to whether we are legally required to pay holiday pay or year end attendance bonuses for those employees who have been out on FMLA. Personally I do not think it is fair to the employees who have worked hard to be at work every day in order to qualify for these incentives.