FMLA and Attendance Bonuses

HRMaiden

We are a Wisconsin employer. We have an attendance bonus program where an employee gets an extra day of vacation for every four months that they have perfect attendance (no absences or tardies). I understand that FMLA leaves cannot be held against an employee for discipline purposes, but would we still have to give the extra day of vacation to an employee whose only absence during the four month period was an FMLA absence?

Also, we provide a quarterly "Cash or Deferred Alternative" bonus to our employees and one of the requirements for this bonus is that the employee works a minimum of 400 hours during the quarter. This bonus is governed by our Retirement Plan as the employee has the option of taking it as cash or having it deposited into their 401(k). If the employee works less than 400 hours because they were on FMLA leave, do they still qualify to get this bonus?

Down_the_Middle

I believe the answers are YES to first question and NO to #2. To deny this employee any attendance rewards would be to treat them differently solely due to the FMLA absence.

#2: FMLA clearly does not require the employer to accrue any benefits (unless it's done for other non FMLA absences) and specifically the accrual of pension benefits need not be done in this case.

Gar

I agree with Down the Middle. My understanding of the regs is very similar. Regarding question No. 2, we require FMLA leaves too run concurrently or simultanmeously with accrued vacation and sick days. If an employee doesn't have the accrued time off in the bank at the time of the leave, the leave is without pay (no pay status). In such status, no payments are made to the pesnion plan.

Carol CA

I'm no attorney, but my two cents would be that you don't have to pay in either situation. The Attendance Award is pretty black and white -- either you are there or you are not. You are not "disciplining" someone for being out on the FMLA leave, you are just saying that they were not there every working day during the award period. I would guess that usually they are also taking sick leave while they are out on FMLA (unless it is already exhausted) and the sick leave would disqualify them.

I would actually be more concerned about the pension one. I'm not very familiar with ERISA so don't feel comfortable advising about this area, but you might want to check into that one further.

Gar

It seems to me that in not paying the attendance award you, in affect, are punishing the employee for taking the FMLA leave. As I like to mention, in rank & file slang parlance, FMLA means "Forget My Last Absence."