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Employment Lawyer Answers: I’m On FMLA. Is My Boss Illegally Marking Me Absent?

On Behalf of | Dec 30, 2013 | Family Medical Leave Claims |

Employment Law Attorneys Answer: Can I be denied a bonus for taking FMLA? What are my medical leave rights? Can I be penalized for taking FMLA?

Employment Attorney in Cleveland, Ohio Answers: Can I be denied a bonus for taking FMLA? What are my medical leave rights? Can I be penalized for taking FMLA? Best, Top, Spitz Law Firm

The Family Medical Leave Act (“FMLA”) is a federal law that requires most employers to give covered employees up to 12 weeks of unpaid vacation for personal or family illness and other qualifying circumstances. The employment attorneys at the Spitz Law Firm, LLC were recently asked an excellent question about FMLA leave and employer attendance policies: “is my employer allowed to count my FMLA absence against me?” It’s a very good question. And the answer, surprisingly enough, is… sometimes.

So what do we mean by sometimes? Basically, whether your employer can count your FMLA leave as an “absence” depends on the attendance policy in question.

Under a “no-fault” policy, every absence is considered an unexcused absence, even if the employee is absent for a good reason. The FMLA specifically states that, an employer with a no-fault attendance policy cannot mark FMLA-covered absences as unexcused, or use them to penalize the absent employee.

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Additionally, some employers have attendance policies that provide bonuses to employees who do not miss any work. With regard to these policies, the courts have determined that FMLA-related absences can be counted against an employee when deciding whether that employee had “perfect” attendance. But why?

For perfect attendance policies that offer bonuses or other incentives to employees who don’t miss any work, disqualification for FMLA leave is not considered a penalty. The employee is not being disciplined. He or she is simply disqualified from receiving an extra perk. The employer must employ its perfect attendance policy consistently though. If the employer only disqualifies individuals who take FMLA, but not other types of leave or vacation, that could easily be considered unlawful FMLA discrimination.

These FLMLA ins-and-outs can get confusing. Even some general practitioner attorneys or lawyers that dabble in multiple areas of the law are often confused by some of these FMLA laws. Therefore, if you feel like your employer is unfairly and improperly penalizing you for your FMLA absence, speak with an employment attorney today.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I …”, “what should I do when …”, “can my boss…” or “is my employer allowed to…”, your best option is to contact an Ohio attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.


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