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On August 28, 2018, the Wage and Hour Division of the U.S. Department of Labor issued two opinion letters. The first one, FMLA 2018-1-A, addresses the treatment of attendance points while an employee is on an FMLA leave of absence. The second, FLSA 2018-20, involves the issue of whether time spent in voluntary wellness activities must be considered as hours worked.

FMLA 2018-1-A: An employer requested an opinion regarding its treatment of attendance points accumulation during an FMLA leave. Under the employer’s plan, employees receive points for tardiness and absences, and those points add up and lead to disciplinary actions up to, and including termination. Points are not added for FMLA-protected leave, vacation, and other approved specified leaves of absence. Employees also get points deducted from their total when they go certain periods of time with no counted absences or tardiness. The question is whether suspending this practice of deducting points for “perfect” attendance during an FMLA leave is a violation of the Family and Medical Leave Act.  The FMLA prohibits employers from interfering with an employee’s right to exercise FMLA. In the opinion of the Wage and Hour Division, since the accrued points are “on hold” during an FMLA leave and it doesn’t result in the employee losing a benefit prior to taking the leave, it is not a violation.

FLA 2018-20: An employer states that certain wellness activities such as tests for cholesterol, blood pressure, and nicotine usage are not related to the employee’s job and it is purely the choice of the employee whether to participate. Participating employees may be given a decrease in their monthly health insurance premiums. The employer asked whether these activities are considered “off duty” and non-compensable.  In their opinion, the Wage and Hour Division stated that since any financial benefit of participation is to the employee, not the employer; and the employee is not engaging in any job-related duties during the wellness activities, the time is not compensable.  However, the Division did note that activities that take 20 minutes or less are generally considered compensable.

For more information on these opinion letters, please contact Joseph F. Spitzzeri.