FMLA, No-Fault Attendance Policies and the Statute of Limitations

A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep’t of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff’s employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff’s twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

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