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ARTICLE · 11 SEPTEMBER 2018

2018 DOL Opinion Letter Under The FMLA

Duane Morris LLP
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Many employers have no-fault attendance control policies. Stated generally:

United StatesEmployment and HR
Jonathan Segal
Jonathan Segal
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I am pleased to provide my latest post to The SHRM Blog.

Many employers have no-fault attendance control policies. Stated generally:

  1. An employee's employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence "falls off," and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy. But does the time that the employee is on FMLA leave count toward the period of time after which a point "falls off?"

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue. The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

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