Many employers have adopted no-fault attendance policies. Under the typical policy, employees are assessed points for violations of the attendance policy without regard to the reason for the absence. See, e.g., Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109-10 (6th Cir. 1997).

Occasionally, a no-fault attendance policy will collide with an employee’s use of FMLA.

A FMLA regulation specifically states that employers are prohibited from counting qualifying leave as part of a no-fault leave policy. 29 C.F.R. 825.220(c). And a termination based only in part on an absence covered by the FMLA, even in combination with other absences, may still violate the FMLA. Cavin v. Honda of America Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003)

Thus, if an employee is terminated due to a no-fault attendance policy and is subsequently able to demonstrate that he had points assessed against him that should have been protected under the FMLA, then the employee will be entitled to damages and/or reinstatement to his former position. See 29 U.S.C. 2617.