| Issue: |
Mary Beth has earned a perfect attendance bonus from your company for five consecutive years. In 2008, she again had perfect attendance, except for one week of unpaid Family and Medical Leave Act (FMLA) leave that she took when she had appendicitis after using all of her accrued paid leave. Is Mary Beth entitled to a sixth perfect attendance bonus?
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Answer: |
In the past, the U.S. Department of Labor’s rule was that an employee could not be disqualified from an attendance incentive plan for taking unpaid FMLA leave, although employees on FMLA leave could be treated the same as other employees on non-FMLA leave with regard to a bonus based on performance, such as a monthly production goal.
Effective January 16, 2009, the rule changed. The Labor Department was concerned that the prior rule encouraged employers to eliminate perfect attendance awards because of the inequity perceived by coworkers of allowing employees who had taken FMLA leave to be eligible for these awards. Under the new rule, if a bonus or other payment is based of the achievement of a specified goal, such as perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied as long as employees on non-FMLA leaves are treated similarly. For example if an employer’s policy does not disallow an attendance award to an employee who takes vacation leave, then the employer cannot deny the award to an employee who substitutes paid vacation leave for FMLA leave.
Source: 29 CFR 825.215(c)(2); 73 FR 67934, November 17, 2008.
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