Spitz, The Employee’s Law Firm
Spitz, The Employee’s Law Firm

Call The Right Attorney™

No Fee Guarantee

FMLA Leave: Can My Job Give Points For using it?

On Behalf of | Dec 31, 2019 | Family Medical Leave Act Claims |

Can My Job Give Points For FMLA Leave?

Best Ohio Disability Discrimination Attorney Answer: Can my employer give me discipline points when I’m on FMLA leave? Can my boss give me attendance points if I ask for time off as an ADA accommodation? What can I do if I get in trouble for taking time off for a medical need? Can My Job Give Points For FMLA Leave?

Like all new law
students, I had the pleasure of taking a Criminal Law and Procedure class in my
first year of law school. As part of the course, we learned the various mental
states (or in fancy legal Latin mens rae)are associated with different crimes. I
won’t bore you with the details, but there are four different mental states
recognized by the Model Penal Code. These mental states range from purposeful
(meaning it was the person’s conscious object to achieve the result of their
actions) to negligent (meaning the person should have been aware of the risks
of their actions). The Model Penal Code also recognizes a fifth kind of
offense. These offenses are referred to as “violations.” Violations are minor
offenses that cannot be punished by anything except for a fine. Some common examples
of violations are offenses such as speeding, loitering, and littering. In order
to commit a violation, it doesn’t matter what a person’s mental state was at
the time the act was committed. Instead, what matters is that they did the act.
A perfect example is if you were to get a ticket for littering when you are
driving with your window down, and a loose fast-food receipt flies out your
window. You didn’t intend to litter; it just kind of happened. However, because
littering is a violation the reason you littered doesn’t matter, all that
matters is the act occurred.

I know what you are
probably thinking, “I thought this blog was about employment law, why are we
talking about criminal offenses?” Well, that is because many employers have
adopted attendance policies similar to the “violations” in criminal law. These
attendance policies are often referred to as “no-fault attendance policies.”
These no-fault attendance policies give employees discipline points each time
the employee is unable to come into work regardless of the reason. Under this
system, an employee is subjected to different kinds of discipline when the
employee reaches certain point levels. For example, if an employee has three points,
he or she may get a verbal warning. If an employee has six points, he or she
may get a written warning. If an employee somehow gets to nine points they may
be suspended with no pay. Finally, if the employee manages to rack up 12 points,
that employee may be terminated for cause. Employers like this kind of attendance
system because it is simple and neutral on its face. It eliminates the need to
ask employees for doctor’s notes, or for employees to have to talk to a
supervisor about the reason the employee missed work. It’s as simple as miss a
day, get a point. While this system may be convenient for employers it creates
major issues for disabled employees and employees who are using protected

Can My Job Give Points For FMLA Leave?

As our employment
lawyers have blogged
before, all employees are protected under the Americans with Disabilities Act
and Ohio’s R.C. § 4112.02(A)
from being discriminated against by their employers on the basis of their
actual or perceived disability. This includes protections from being
terminated, being paid less, being demoted, being denied a promotion, and being
treated differently than any other similarly situated non-disabled employee.
(See My Job Is
Discriminates Against Me Because I’m Disabled!
Top Disability
Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not
Accommodate My Anti-Social Disorder?
and Is It Wrongful
Termination To Fire Disabled Workers?

anti-discrimination laws also prohibit employers from making pre-employment,
disability-related inquiries of job applicants. Additionally, the ADA requires
employers to provide reasonable accommodations to employees who, either with or
without such accommodations, are qualified to “perform the essential functions
of the employment position.” (See How Do I Get A
Disability Accommodation For My Job?
Can A Service Dog
Be A Disability Accommodation At My Job?
and Does My Job Have
To Accommodate My Paralysis?

Relevant to today’s
blog, time off for medical treatment is often seen as a reasonable
accommodation under the ADA. (See. Can A Schedule
Change Be An ADA Accommodation
Does My Job Have
To Give Me Time Off For Cancer Treatments? I Need The Top Disability
Discrimination Lawyer And Best Wrongful Termination Attorney In Ohio!

and, What Should I Do
If My Boss Fires Me For Getting Regular Medical Treatment For My Disability? I
Need The Best Disability Lawyer

Lastly, your boss, manager, or supervisor cannot retaliate against you for requesting a reasonable accommodation to help you perform the essential functions of your job- or give points for FMLA Leave. This retaliation would include disciplining an employee for the time they took off for medical treatment.

Similarly, employees with serious medical conditions may be eligible for protected leave under the Family and Medical Leave Act (“FMLA”). The FMLA allows for up to 12 weeks of protected unpaid leave to an employee so that the employee may deal with serious medical issues that either they or a close family member is suffering from. This 12-week leave can be used all at once or as needed to address medical issues that arise. When leave is sought on an as-needed basis, this is called intermittent FMLA leave. The FMLA also makes it unlawful for employers to fire, discriminate or otherwise retaliate against an employee who chooses to exercise his or her rights under the FMLA, including giving points for FMLA Leave . Importantly, when an employee returns from leave granted by the FMLA, he or she is entitled to be restored to his or her former job, or to an equivalent job with equivalent pay, benefits, and other terms of employment. Further, an employer may not discipline an employee for their absences, or time off that is covered by the employee’s FMLA leave- including points. (See. Can I Be Fired For Asking About FMLA?, My Employer Demoted Me Because I Took FMLA Leave!, Can My Boss Stop Me From Taking Medical Leave Under The FMLA?, and My Employer Demoted Me Because I Took FMLA Leave! I Need The Best FMLA Retaliation Lawyer In Ohio!).

Can My Job Give Points For FMLA Leave?

Recently, an employer found out the hard
way that applying a blanket no-fault attendance policy violates an employee’s
rights under both the ADA and the FMLA. In a recent lawsuit, a quality auditor who
worked at American Woodmark Corporation, a wood cabinetry manufacturer, claimed
that the company violated federal law when it denied the employee a reasonable
accommodation of two days time off for medical treatment, for her epilepsy,
migraines, and heart condition. This was also submitted as a request for
intermittent FMLA leave. As if denying the reasonable accommodation/FMLA
request wasn’t bad enough, the employee’s complaint alleged that instead of agreeing
to the employee’s request for two days of unpaid leave, the evil employer gave
the employee discipline points under its no-fault attendance policy. American
Woodmark then fired the disabled employee for going over the number of
attendance points allowed. To make matters worse, the employee had even
provided a doctor’s note and updated FMLA forms to prove that the employee was
using the time off for the purposes of medical treatment and recovery connected
with her disabilities.

The disabled employee’s case has not yet
gone to trial. Given the employee’s strong position it would be surprising if
American Woodmark decides to fight it out in front of a jury.

If you feel that you are being
denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for
taking medical leave, you should call the right
as quickly as possible to schedule a free and
consultation. If you are disabled or your employer
perceives you as being disabled; and you have been fired, wrongfully
, discriminated against, demoted, wrongfully
disciplined, denied
, or even think that you might need a disability
discrimination lawyer, then call the right attorney to schedule
a free and confidential consultation. The best option is not to
wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its
attorneys are experienced and dedicated to protecting disabled
employees’ rights under ADA and Ohio employment law


This employment law website is an
advertisement. 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
get medical leave from work under the FMLA?”, “what should I do when my boss
won’t give me FMLA leave?”, “can the company that I work for deny me medical
leave?”, “can I sue for wrongful termination if I was fired in retaliation for
taking FMLA leave?”, or “is my employer allowed to punish me for using
intermittent FMLA?”, your best option is to contact an Ohio medical leave
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.