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Introduction to the
Family and Medical Leave Act

FMLA leave vs. "no fault" attendance policies

The U.S. Department of Labor has issued regulations forbidding an employer from counting FMLA leave time against an employee under a "no fault" attendance policy. See, 29 C.F.R. Section 825.220(c).

A "no fault" attendance policy is an attendance policy that specifies that an employee can only miss so many days of work before being subjected to disciplinary action (usually termination) -- even if the employee was absent through no fault of his own. It does not matter why the employee was absent -- just that the employee was absent.

So for example, let's assume an employer has a "no fault" attendance policy which states that an employee cannot miss more than 20 days of work per year. If an employee gets a severe case of food poisoning in employer's cafeteria and misses work for 21 days, the employee would normally be fired. But if the employee takes medical leave under the Family and Medical Leave Act, the 21 days cannot count against the employee under employer's "no fault" policy.

Spouses who work for same employer using FMLA leave

If a husband and wife work for the same employer and they both qualify for family or medical leave, the employer can limit the combined time they take off to 12 workweeks if the leave is family leave. However, if each spouse has a serious medical condition, they could each take off up to 12 workweeks during a 12 month period. See, 29 U.S.C. Section 2612(f).

Using FMLA leave for the intended purpose

If someone takes family or medical leave under the FMLA, he or she had better use the leave time for its intended purpose. If an employer honestly believes that an employee is using the leave time for some other purpose, that employee can be terminated.

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