No-Fault Attendance Policies and Protected Leave: Which Absences Can Never Count as Points

How a No-Fault Attendance Policy Works

Under a typical policy, each unscheduled absence, tardy, or early departure earns a point or fraction of a point. Points accumulate over a rolling period, discipline is triggered at set thresholds, and points drop off after a fixed time. "No-fault" means the employer does not ask why the employee was absent.

These policies are lawful in themselves. The Department of Labor has said that no-fault attendance policies do not necessarily violate the FMLA as long as points are not assessed for absences due to an FMLA-qualifying reason. The compliance work is in the exceptions.

Absences That Cannot Count as Points

FMLA

The FMLA regulation is direct. Employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, promotions, or disciplinary actions, "nor can FMLA leave be counted under no fault attendance policies" (29 CFR 825.220(c)).

Three practical consequences follow:

• The absence must be screened before a point is assessed. An employee does not have to say "FMLA." Under 29 CFR 825.303, calling in "sick" without more is not enough to put you on notice, but once the employee gives information suggesting a qualifying reason, the employer is expected to inquire further. A points system that auto-assigns a point from the timekeeping record skips that step.
• Retroactive designation means retroactive point removal. If an absence is later certified as FMLA-qualifying, the point comes off and any discipline that depended on it has to be reconsidered.
• Call-in rules still apply. Employees must follow the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. You may discipline for an unexcused failure to follow the call-in procedure, as a separate matter from the protected absence. Keep the two violations distinct in the policy and in the documentation.

What About the Clock for Points to Drop Off?

Many policies remove points after a period of good attendance or "active service." Can FMLA leave pause that clock? In Opinion Letter FMLA2018-1-A, the Wage and Hour Division reviewed a policy under which points stayed on the record for twelve months of active service and were effectively frozen during FMLA leave, so that an employee returned with the same number of points they had before leave. WHD concluded that this does not violate the FMLA, because the employee neither loses a benefit accrued before leave nor gains one they would not otherwise have, provided the employer treats equivalent types of non-FMLA leave the same way. If other comparable leave counts as active service for point reduction but FMLA leave does not, the employer may be discriminating against employees who take FMLA leave.

Attendance Bonuses

The same equal-treatment idea governs bonuses. Under 29 CFR 825.215(c)(2), if a bonus is based on achieving a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal because of FMLA leave, the payment may be denied, unless it is paid to employees on an equivalent leave status for a non-FMLA reason. If someone on vacation or paid sick leave still qualifies for the perfect attendance bonus, an employee on FMLA leave must as well. State sick leave laws may be stricter than the FMLA on this point.

ADA

The ADA analysis is less mechanical. The EEOC's reasonable accommodation guidance addresses no-fault leave policies directly: if an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its no-fault policy to provide it, unless there is another effective accommodation or the leave would cause undue hardship. The same guidance says an employer may not penalize an employee for work missed during leave taken as a reasonable accommodation; doing so would be retaliation for using the accommodation.

That does not make attendance optional. The EEOC's guidance on performance and conduct standards says employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules, or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period, and often without advance notice. Indefinite leave, where the employee cannot say whether or when they will return, is an undue hardship.

So under the ADA the questions are: Was the absence part of a granted accommodation? If not, has the employee said something that should start the interactive process? And if the pattern cannot be accommodated without undue hardship, is that analysis documented? For related traps, see 100 percent healed and maximum leave policies under the ADA and When Leave Becomes a Reasonable Accommodation.

Verification note: The EEOC guidance documents cited here were posted on eeoc.gov when this article was prepared; confirm they remain current.

PWFA

The Pregnant Workers Fairness Act makes it unlawful to take adverse action in the terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation for a known limitation related to pregnancy, childbirth, or related medical conditions (42 U.S.C. 2000gg-1(5)). The EEOC lists leave for medical appointments, additional breaks, and schedule changes among possible accommodations. An attendance point for a late arrival that was itself the accommodation, or for a prenatal appointment granted as leave, is the kind of adverse action the statute describes.

The employer also may not require an employee to take leave if another reasonable accommodation can be provided, so "just stay home until you can work a full shift" is not a safe response.

The PWFA statute is in force. Parts of the EEOC's implementing regulation have been challenged in court, and the agency has announced plans to propose revisions. Verify the status of the EEOC's PWFA rulemaking and related litigation at eeoc.gov. The statutory prohibition quoted above does not depend on the regulation.

State and Local Law

This is the fastest-moving category.

• Paid sick leave laws. State paid sick leave laws prohibit retaliation for using protected time. Washington's labor agency, for example, states that an employer is prohibited from disciplining an employee for an absence covered by paid sick leave. Once the protected balance is used up, later absences are generally governed by employer policy; New Mexico's agency says so expressly. See paid sick leave laws by state.
• Express bans on points. New York amended Labor Law section 215, effective February 2023. The state Department of Labor explains that employers are specifically prohibited from assigning or deducting points under an absence control policy for using legally protected absences, which the agency describes as including time for sickness, disability, pregnancy, caregiving obligations, domestic violence, jury duty, voting, and blood donation. Verify penalty amounts and current scope on dol.ny.gov.
• Workers' compensation and other protected time. Most states prohibit retaliating against an employee for pursuing a workers' compensation claim, and many protect jury service, voting, and leave for victims of crime or domestic violence. These are state-law questions; do not assume the answer is the same everywhere.

USERRA

Absences for military service are protected at any employer size. USERRA bars denying any benefit of employment because of service obligations, and the 2025 amendments extended the retaliation provision to "other retaliatory action." A point for a drill weekend should never be entered. See USERRA leave and reinstatement rights.

Steps to Screen Absences Before Points Are Assessed

The fix is procedural: put a review step between the absence and the point.

1. Capture the reason at call-in. Record what the employee says without demanding a diagnosis. A short script works: "Is this related to a condition or leave you have already talked to HR about? Is it for your own health, a family member's health, or something else?"
2. Hold the point as pending until HR or the leave administrator has reviewed it.
3. Run the screening questions. Could this be FMLA-qualifying? Is there an approved intermittent leave or accommodation on file? Did the employee mention pregnancy, a disability, an injury at work, military duty, or a family member's medical need? Is the employee in a state or city with a sick leave law, and is there a balance available?
4. Send the notices the law requires. If the absence may be FMLA-qualifying, the eligibility notice is due within five business days. Classify first, then decide on points. Our guide on How to Classify Leave Requests From Day One covers intake.
5. Finalize or void the point, and record why. Note "no point: FMLA intermittent" or "no point: state sick time" in the attendance record without medical detail. Medical documents stay in the confidential file.
6. Review before every disciplinary step. Before any warning, suspension, or termination under the policy, HR re-audits every point in the count. This is the last chance to catch a protected absence.
7. Remove points retroactively when status changes. If certification arrives later or an accommodation is granted back to a date, correct the record and revisit any discipline issued.

Sample Policy Wording

The following is an example to adapt with counsel, not a form to copy:

Absences not counted. Occurrences are not assessed for absences protected by federal, state, or local law. These include, for example, approved leave under the Family and Medical Leave Act, leave or schedule changes provided as a reasonable accommodation, military service, legally protected sick and safe time, jury duty, and other absences protected in the jurisdiction where you work. If you believe an absence may be protected, tell Human Resources as soon as you can, even after the absence.

Reporting absences. All employees must report absences using the call-in procedure in this policy unless an emergency or other unusual circumstance prevents it. Failure to follow the call-in procedure may be addressed separately from the absence itself.

Review. Human Resources reviews all occurrences before any corrective action is issued under this policy.

Common Mistakes

• Auto-assigning points from the timeclock with no human review.
• Counting absences while certification is pending, or counting the partial day covered by intermittent leave or an accommodation.
• Treating the point limit as an automatic termination trigger with no ADA check.
• Supervisors keeping their own tallies. Use one system, reviewed by HR.

Where you suspect misuse, the answer is a proper inquiry, not a point. See Managing Suspected Leave Abuse. And because supervisors are the ones entering absences, they need to recognize a protected reason when they hear one; see Training Managers on Leave Management Responsibilities.

Screening one absence against four or five laws at once is the skill that takes practice. Our worked scenarios on overlapping leave laws walk through examples, and the two-day Leave and Accommodation Management seminar uses interactive exercises on how FMLA, ADA, PWFA, USERRA, workers' compensation, and state laws apply to the same employee.

Frequently Asked Questions

The Bottom Line

A no-fault attendance policy can stay no-fault for ordinary absences. It cannot be no-questions-asked. Federal law removes FMLA leave, accommodated absences under the ADA and PWFA, and military service from the count, and state law removes protected sick time and more. The employers who get this right put a screening step between the absence and the point, audit the full count before any discipline, and train supervisors to pass along what they hear.

For the wider framework, start with the Leave Management Guide and the Leave Management Compliance Checklist. If attendance decisions at your organization regularly involve more than one leave law, the advanced Leave and Accommodation Management seminar is built around that kind of case.

This article is general education, not legal advice.