Human Resources News & Insights

How one employer’s attendance policy violated FMLA

In a recent case, a federal court ruled that an employer violated FMLA by firing an employee for excessive absences even though the employer didn’t include FMLA leave in the total of the employee’s absences.

The case — Dickinson v. St. Cloud Hospital — involved an employee who had numerous unauthorized absences and who had received numerous warnings about poor attendance.

  • The employer then instituted a companywide attendance policy: any employee whose absences amounted to 5% of workdays could be fired. The employer laid out the following annual formula for computing excess absences:
    No. of hours absent divided by No. of hours scheduled to work = Percentage of hours absent
  • So, under that formula, an employee who was scheduled to work 2,000 hours in a year and who had 100 hours of absences in a year would produce the following result:
    100 hours divided by 2,000 hours = 5%

That’s what the employee’s numbers in the case looked like, but no FMLA leave was included in the 100 hours of absences. So where did the company go wrong?

Here’s where. The company failed to add the FMLA leave from the No. of hours scheduled to work figure. In fact, if those hours had been added, the results of the formula would have been quite different. For instance, assume the employee took 200 hours of FMLA leave. That would make the formula look like this:
100 hours divided by 2,200 hours (2,000 + 200 hours of FMLA leave) = 4.54%

The lesson
Employers who hand out discipline based on absentee rates had better have the math right when dealing with an employee who has taken FMLA leave:

  • First, be sure the FMLA leave isn’t included in any totals labeled “unauthorized” or “excess.”
  • Second, treat the leave taken under FMLA as “time worked” or “regularly scheduled work time.”
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  • Fran Anderson

    The court’s finding in this case makes sense but I started wondering- If the courts are interpreting FMLA as equal to time worked, does that lead to questions about applying unpaid leave policies to FMLA employees, who have no paid leave time? We continue healthcare benefits, life insurance, etc. However for employees who have used up all paid leave, we do not accrue leave time or pay for holidays. It seems if the courts say FMLA counts as time worked, we may need to re-examine our policies? How are others handling unpaid leave on FMLA?

  • Amy

    If the 200 hours of FMLA is equal to time worked, shouldn’t the 200 be subtracted from the 2000 instead of being added to it? The FMLA would not be considered as missed if itis taken out of the equation. Unfortunately, that would be 1800 divided by 100 or 5.56%(5.555…)

    Fuzzy math …

  • Kristy


    It seems to me the company didn’t count the FMLA on either side of the equation. They just basically didn’t include it as either time worked or missed. The HR Manager was probably trying to adhere to the protection that FMLA extends by not including it in the time missed column, but neglected to include it in the time worked column.

    Effectively, if you don’t consider FMLA in either side, then you are doing the employee an injustice because it clearly skews the numbers. There are 200 hours of work that are completely left out of the equation.

    Fran, we do not allow PTO or holiday time accrual for our employees while out on leave. That seems to be a pretty standard policy industry wide because most policies have a “scheduled to work” caveat to holiday pay, meaning that if you were not scheduled to work the day of a holiday you do not receive pay for it.



  • Larry

    Very few people are “scheduled” to work over 2080 per year. This 2200 figure is bogus to me. I think they should count unexcused absences or non-FMLA absences towards the disciplinary measures.

  • Rick McKenzie

    My guess it the court made an erroneous assumption.
    The 2000 hours probably included the FMLA time already but the lawyer failed to state it as part of testimony or have it stipulated.
    The work schedule was probably 2080 hours per year with 80 hours vacation. If they did not deduct the FMLA hours the scheduled hours would be 2000.
    The court “assumed” the 2000 hours excluded the FMLA hours.
    Good luck on the appeal because the error will never be corrected.

  • JT

    I kind of thought the 100/2000 was just an example of how it would be calculated, but it is not an unreasonable requirement. When I worked at a cpa firm, full-time employees were required to work 40 hours per week, including any vacation or sick time (2080 hrs) and an additional 200 hours (around 10 hrs per week) during tax season, for a minimum of 2280 hours per year. Where I am now, management staff is required to work 45 hours per week, or 2340 hours per year (including vacation).

  • Gloria M

    I agree with Rick, i think the court made an error. If 200 hours is added in it exceeds the scheduled hours for any employee thus giving preferred treatment to the employee who took FMLA over those who were absent and did not take FMLA. 2000 hours would be the equivelent of the Full-time employee’s schedule.

  • If the FMLA days are counted as days work, then when the employer are counting up for the 1250 days work. Then the days that an employee take as FMLA days, would be use in the equation when adding up for the 1250 days that is needed in the year before.