Under the Family and Medical Leave Act, employers cannot penalize employees for use of FMLA leave. Earlier this month, the Sixth Circuit Court of Appeals found that an employer’s resetting of a perfect attendance program clock based on FMLA leave interfered with the plaintiff’s leave rights.

In Dyer v. Ventra Sandusky, LLC, the employer’s collective bargaining agreement provided that if an employee had 30 days of perfect attendance, it would reduce points accumulated under the no-fault attendance policy. The plaintiff qualified for FMLA leave due to migraines, but the perfect attendance policy reset the 30-day clock for each of his absences from work. While the employer did not count the FMLA absences toward the cumulative point total, the employee was eventually terminated based on absences for other reasons. He sued, claiming that his inability to obtain the benefit of points reduction interfered with his FMLA rights.

The district court dismissed the claim, noting that the employer counted all medical absences against the perfect attendance criteria, including for non-FMLA reasons. The Sixth Circuit reversed this decision, remanding the claim for further proceedings. The circuit court concluded that by resetting the perfect attendance clock for each FMLA absence, the employer denied a benefit enjoyed by employees who did not take FMLA leave. Employees who took intermittent FMLA leave practically could not obtain the benefit of the points reduction program.

The Sixth Circuit noted that the perfect attendance clock did not reset when employees were absent for non-medical reasons such as vacation time, military leave, or jury duty. Therefore, the employer’s argument that it treated non-FMLA leave the same under the perfect attendance policy was not appropriate for summary judgment. This decision illustrates the general principle that, with a few exceptions, employees on FMLA leave need to be treated as if they never left work when it comes to coverage under employee benefits programs.