August 29, 2022 | Category: Uncategorized

Most employers that deal with the Family Medical and Leave Act (FMLA) are aware that FMLA prohibits employers from denying an eligible employee FMLA leave for a qualifying leave reason. However, many employers do not realize that they also have to be cautious of interfering with employee’s exercise of their FMLA rights. The FMLA specifically states that an employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. So, how does it happen?

In a recent court case, an employer was found to have interfered with an employee’s exercise of FMLA rights even though the company still approved and provided FMLA leave to the employee. The court determined that the company interfered with the employee’s exercise of FMLA rights because the employee’s manager stated to the employee, “[y]ou’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.” The court went on to state that, “[i]nterfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” The full court decision can be found here: Ziccarelli v. Cook County (June 1, 2022).

As such, even if an employer approves an employee’s request for FMLA, they can still run afoul of the law if they interfere with the exercise of those rights. Words or actions that are meant to discourage or restrain an employee from taking FMLA leave or from using the full amount of FMLA leave they are entitled to is enough to support an FMLA claim.

What does this mean for employers? It means that it is extremely important that employers make sure that their managers and HR representatives are properly trained on their responsibilities under the FMLA. They should receive specific training regarding how to effectively and lawfully manage leaves of absences under your company policies as well as under the law. It should be made very clear that they should never make any comments that could be interpreted as discouraging an employee from requesting FMLA leave as well as discouraging employees from actually taking FMLA leave. Managers and HR representatives should be given clear warnings against any and all comments about an employee’s medical leave and that any reports of unlawful comments made will lead to disciplinary action.

Beyond training, another useful tool to ensure that a company can defend against any FMLA interference claim is following up with the employee after the manager or HR representative has met with them regarding their request for FMLA leave. The follow up can be something as simple as an email, but can be more formal documentation and should outline what was discussed in the meeting and invite the employee to follow-up with the manager or HR if they want to use FMLA leave in the future or if they have any additional questions about FMLA leave. Having documentation such as this is evidence that the company takes their obligations under FMLA and FMLA leave seriously. Further, it could also counter any claim made by the employee that the company had attempted to interfere by coercing them not to use FMLA leave in the future.

NAE members with questions about their FMLA obligations or how to navigate FMLA leave should contact our team of HR and legal professionals for assistance. Not a member yet? Join today and begin enjoying the benefits of membership.