In Dickinson v. St. Cloud Hospital, 2008 WL 4659562 (D. Minn. October 20, 2008), an employer’s neutral absenteeism policy was found to violate the FMLA by effectively reducing the number of non-FMLA absences an employee could incur before being subjected to discipline up to and including termination.

Amanda Dickinson worked for St. Cloud Hospital in Minneapolis, Minnesota as a licensed practical nurse. She was hired in February 2000 and worked for St. Cloud’s until May 9, 2006 when she was terminated for violating St. Cloud’s absenteeism policy.

St Cloud’s absenteeism policy has separate provisions for non-FMLA and FMLA absenteeism. Non-FMLA absenteeism rates exceeding 4% are cause for the supervisor to review the employee’s attendance record to determine if counseling or disciplinary action is necessary. St. Cloud’s calculates absenteeism rates by dividing the number of hours an employee is absent by the scheduled hours of the employee. Certain absences, including FMLA-qualifying absences, are not calculated into the absenteeism rate. St. Cloud’s does not use a specific time period when determining the absenteeism rate, such as absences over the previous 12 months, because each employee works a different schedule. Excessive absenteeism is subject to progressive levels of discipline from verbal warnings up to and including termination.


Dickinson was successful in progressing up the discipline ladder all the way through termination as a result of her absenteeism. Many of her absences, however, were the result of conditions covered by the FMLA and, therefore, were not factored into her absenteeism rate. Despite the neutral absenteeism policy, Dickinson brought suit against St Cloud’s alleging that its absenteeism policy interfered with her FMLA rights to exercise qualified leave under the FMLA.

Section 2615(a)(1) makes it “unlawful for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise, any right provided under this title.”The regulation interpreting this provision provides, “[e]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c); see also29 U.S.C. § 2615(a)(1). An interference claim requires only proof that the employer denied an entitlement under FMLA and does not require a showing of intent. Stallings, 447 F.3d at 1051. Once such an entitlement is shown, an employer can avoid liability only by showing it would have made the same contested decision even if the employee had not exercised her FMLA rights. Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 979-80 (8th Cir. 2005).

Dickinson’s main theory of liability was that St. Cloud’s interfered with her FMLA rights by calculating her absenteeism rate in a manner that violated the FMLA. She argued that FMLA leave must be included in the denominator of the absenteeism rate because, without it, there is a negative effect of increasing her absenteeism rate. For example, Dickinson was scheduled to work 1872 hours per year. To comply with St. Cloud’s 4% absenteeism rate, she could only miss 74.88 hours per year (74.88/1872 = 4%).

If Dickinson were to miss 74.88 hours of work and have 100 hours in FMLA leave time for the same year, St. Cloud’s would, by its policy, not include the FMLA time in either the numerator or the denominator of the absenteeism rate equation. Dickinson’s absenteeism rate would then become 4.22% (74.88/1772 = 4.22%). Dickinson argues that, in effect, she was penalized for taking FMLA leave through a higher absenteeism rate. By taking FMLA leave, Dickinson was permitted fewer non-FMLA absences. In this case, she could only incur 70.88 hours of non-FMLA absences to remain at the 4% absenteeism rate if she also took 100 hours of FMLA leave during the same time period.

The Minnesota District Court looked to two cases for guidance on this issue. In Keasy v. Federal Express Corp., No. 03-228 (W.D. Mich. Dec. 9, 2003), the district court determined that not subtracting out FMLA leave from the denominator gave the employee 100% attendance at work during time that the employee was not at work. According to the court, this resulted in a benefit to the employee, something not required by the FMLA, and rejected the employee’s argument.

In Payton v. Federal Express Corp., No. 1:06-CV-00333, 2006 WL 2715163 (M.D.Pa. Sept. 22, 2006), the district court disagreed with the finding in Keasy. It determined instead that subtracting out FMLA leave from the denominator without adjusting the numerator accordingly resulted in decreasing the number of no-fault attendance days to the employee. The Payton court found this to be a violation of the FMLA.

In the instant case the Minnesota district court found the Payton analysis more convincing but never addressed the benefit given to employees by not subtracting out the FMLA leave time from the denominator. Perhaps the answer lies in scrapping the “neutral” mathematical formula and adopting a more standard absenteeism policy which focuses on actual absences and not percentages.

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