While on intermittent leave, can an employer use FMLA absences against me in a shift bid?

UPDATED: Sep 30, 2022

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While on intermittent leave, can an employer use FMLA absences against me in a shift bid?

I have a FMLA for intermittent absences and my employer is doing a shift bid. The employer is using a point system in the shift bid, where if you miss work you lose 10 points per day you are absent and

you get 10 points for being at work. My employer is using the days I miss using the FMLA to lower my bid placement on the shift bid. I originally started on a seniority system. My seniority was 8 in the shift bid, so basically they are telling me if I use my FMLA for absence I will be punished by losing my seniority. I am now sitting on the shift bid at 116 out of 120. They are doing this to anyone that has an

FMLA. I have contacted my supervisor and HR with no results. Is this legal to use my FMLA against me like this?

Asked on June 16, 2017 under Employment Labor Law, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If the point system applies to all employees, so that employees who are absent for other reasons, too, such as sick days, personal leave, or vacation days, will also suffer consequences, then this would not be FMLA retaliation: the employer may not specifically discriminate against, disadvantage, or harass employees for using FMLA leave, but they may have neutral policies that affect all employees more or less evenly, even if that puts those on FMLA at a disadvantage. The key issue is whether employees on FMLA are being "targetted" by the policy in some way--if they are (and other employees missing work for  non-FMLA reasons are not also disadvantaged), then in that case, this may indeed be illegal FMLA-retaliation. If you feel that is likely the case, contact the department of labor to inquire into filing a complaint.

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