In Bailey v. Pregis Innovative Packaging, Inc. 2010 WL 1253604 (7th Cir. 2010), the court rejected a former employee's attempt to use time spent on FMLA leave to secure more leave or remove an absence under the employer's "no-fault" attendance policy.  The company fired the employee for accumulating more than eight points under its no-fault attendance policy.  The employee argued the Company violated the FMLA because two of her points were due to absences protected by the FMLA and should not have been considered, but the court rejected both arguments.

First, the court explained that to be eligible for FMLA leave, the employee must have worked 1,250 hours in the previous 12 months, and here, the employee could not meet this requirement unless the court treated the time she spent on a prior FMLA leave as time worked.  While the FMLA requires employers to continue to treat employees on FMLA as eligible for certain benefits and continuous service credits, the court concluded that the FMLA does not require an employer to treat time spent on FMLA as time worked for purposes of earning additional FMLA leave.

Second, the court rejected the employee's argument that the company retaliated against her for taking the prior FMLA leave.  The company's no-fault attendance policy provided for forgiveness of a "point" after the employee worked for 12 months.  The employee argued that the time spent on the prior FMLA leave should be treated as time worked for purpose of the attendance policy, in which case a point should have been removed.

The court rejected the employee's argument.  The court observed that while removal of points under an absentee policy is a benefit that the FMLA protects, i.e., an employee on FMLA must be treated the same with respect to the removal of points as employees who miss work for other reasons, the FMLA protects only "employment benefits accrued prior to the date on which the leave commenced."  29 U.S.C. §2614(a) (2) (emphasis added).  Accordingly, because the FMLA protects only a benefit accrued prior to the date on which the leave commenced, and because the employee was not entitled to have a point removed when she commenced her prior FMLA leave, the employee had no right to have the time spent on the prior FMLA leave counted as time worked for purposes of the company's attendance policy.  The court recognized that under this approach, it would it take an employee on FMLA leave longer to wipe the slate clean than an employee who did not take any FMLA leave, but nonetheless ruled that such facts did not violate the FMLA.

The court's decision highlights the importance of checking an employee's eligibility prior to approving FMLA leave, and ensuring that none of an employee's absences used under a no-fault policy are protected by the FMLA.