Short of denying leave, an employer can still violate the FMLA just by discouraging someone from taking it

Two posts in one week about interference with Family and Medical Leave Act rights.

The FMLA prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights. On Wednesday, we discussed how an employer doesn’t interfere with FMLA when it does not provide FMLA leave to an employee who doesn’t request it.

But now, a different set of facts.

Suppose an eligible employee visits HR to request FMLA leave to seek treatment for a serious health condition. The response is chilly, “You’ve already taken serious amounts of FMLA. Don’t take any more FMLA. If you do, we will discipline you.”

Assume that while the employer doesn’t specify the discipline, it’s enough to deter the employee from applying for FMLA leave. But technically, the employer never actually denied any FMLA leave.

Does this amount to FMLA interference?

According to the Seventh Circuit Court of Appeals (in this opinion), yes, it does. There are four reasons why:

1. When employers refuse to grant or accept proper FMLA requests, they deny access to leave within the meaning of the FMLA.
2. The FMLA protects “the attempt to exercise” FMLA rights, which would make little sense if actual denial were required.
3. The FMLA guarantees family and medical leave to eligible employees and their families. Allowing employers to chill those rights without actually denying leave requests would undermine the statute’s purpose.
4. Department of Labor regulations implementing the FMLA prohibit employers from discouraging employees from using leave.

In sum, denial of FMLA benefits is not required to demonstrate an FMLA interference violation. Instead, interference or restraint alone is enough to establish a violation.

Hopefully, none of you would explicitly deter an employee from seeking FMLA leave. But even implementing a burdensome approval process or implicitly discouraging employees from requesting FMLA leave (e.g., your untrained managers) could interfere and restrain access without actually denying the leave request. And that’s FMLA interference.

So make sure that your company has policies and procedures (and training) to provide employees with easy access to FMLA benefits.