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.”
