Bonuses and the FMLA

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Question

We are confused about how bonuses work for employees who take leave under the federal Family and Medical Leave Act (FMLA). Can an employee’s FMLA leave be counted against them for their bonus?

Answer

As a general matter, employers must be cautious when denying any right to an employee who takes FMLA leave. Employers are prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. Employers may not use an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.

That said, an employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for an FMLA-qualifying reason.

Additional laws may apply to an employee’s situation, such as other federal, state and/or local laws. Employers are advised to work with local counsel to ensure they comply with all applicable legal requirements.