Calculating Absenteeism Rates Without Violating the FMLA

November 14, 2008

On October 20, 2008, the United States District Court for the District of Minnesota ruled in the case of Amanda Dickinson v. St. Cloud Hospital that an employer violated the Family and Medical Leave Act (FMLA) by the manner in which it factored FMLA leave into the calculation of an employee’s absenteeism rate for purposes of discipline. Indeed, even though the employer did not count the employee’s FMLA leave dates as negative absences for purposes of absenteeism tracking, the Court ruled that the employer’s overall absenteeism calculation still caused an indirect, impermissible interference with Ms. Dickinson’s FMLA rights under 29 C.F.R. § 825.220(c).


The FMLA is federal legislation that affords certain covered employees the right to take unpaid leaves of absence in certain circumstances, including leave for an employee’s own serious health condition. Employees who qualify for such leave may take up to twelve (12) weeks of unpaid leave during any designated

12-month period. In addition, under the FMLA, employers cannot use the taking of authorized FMLA leave as a negative factor in making employment decisions. Employers also cannot count FMLA leave against an employee under “no-fault” attendance policies.

Facts of the Case

In Dickinson, the defendant hospital had a policy in place that allowed it to discipline its employees for excessive absenteeism. A supervisor could consider discipline if the employee’s non-FMLA absenteeism rate exceeded four (4%) percent. Excessive absenteeism could result in various tiered levels of discipline, up to and including termination. In addition, the hospital employer specifically calculated the absenteeism rate for employees as follows:

No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hrs. Scheduled – FMLA Hrs. Missed*)

*Treated as non-scheduled hours.

Throughout her employment, Ms. Dickinson had received numerous oral and written warnings for excessive absenteeism. In the first part of 2005, Ms. Dickinson was suspended for exceeding the absenteeism rate, after which her attendance rate improved. However, due to medical issues and qualified FMLA leave taken during 2005 and 2006, under the employer’s calculations, Ms. Dickinson’s absenteeism rate exceeded the permissible amount. As a result, the employer terminated Ms. Dickinson for a “non-FMLA absenteeism rate of 7.12% from November 6, 2005, to March 25, 2006.”

The Court’s Analysis of the Employer’s Absenteeism Rate Calculation

After her termination, Ms. Dickinson sued St. Cloud Hospital, claiming her termination violated the FMLA. Specifically, Ms. Dickinson alleged that the employer’s calculation of her absenteeism rate interfered with her FMLA rights, even when only non-FMLA leave days were counted as absences for purposes of the absenteeism calculation.

As noted above, when calculating the absenteeism rate, the employer did not count Ms. Dickinson’s FMLA leave into either the numerator or denominator of its calculation. As such, it argued that it was in compliance with the FMLA, as it did not factor FMLA leave into its calculation of Ms. Dickinson’s non-FMLA attendance rate. To support its position, the employer cited Keasey v. Federal Express Corp, No. 03-228 slip op. (W.D. Mich. Dec. 9, 2003), which approved a similar manner of calculation.

Despite these facts, the court in Dickinson disagreed. Instead, the court followed Payton v. Federal Express Corp., 2006 WL 2715163 *4-5 (M.D. Pa. Sept. 22, 2006) to hold that by failing to add the number of FMLA leave days into the denominator of its calculation, St. Cloud Hospital reduced the total number of available “no-fault” attendance days and, therefore, impermissibly interfered with the employee’s FMLA rights.

To illustrate its point, the Dickinson court set forth the following hypothetical. If the employee was scheduled to work 1,872 hours per year, to remain below the 4% absenteeism rate required by the employer, the employee could miss only 74.88 hours (74.88/1872 = 4%). However, if an employee took 100 “no-fault” hours of FMLA leave on top of the 74.88 hours of non-FMLA leave and the employer did not include the 100 “no-fault” hours into the denominator when calculating absenteeism rates, the employee’s absenteeism rate would rises above 4% (74.88/1772 = 4.225%).

Therefore, according to the Dickinson court, the proper absenteeism rate calculation should have been the following:

No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hours Scheduled, Including No. of FMLA Hrs. Taken)

Lessons Learned

Although an employer is free to set policies and practices in place that allow for discipline of employees who have excessive absenteeism, employers must be careful when determining how and when to calculate compliance. Indeed, even policies that on their face do not appear to retaliate against employees for taking FMLA leave may run afoul of court interpretation of the Act.

For assistance in ensuring that your company’s absenteeism rates are being calculated correctly, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits teams, who can offer expert advice in ensuring that your employment policies and practices comply with the FMLA and its implementing regulations.