By Nadia Bandukda

The Family and Medical Leave Act (“FMLA”) arms employees with two types of causes of action against employers. First, its “retaliation/discrimination” provisions prohibit employers from discharging or discriminating against employees for “opposing any practice made unlawful” by the FMLA.  Second, the FMLA’s “interference” provision states that it is “unlawful for any employer to interfere with,  restrain, or deny the exercise of or the attempt to exercise” any right provided by the FMLA.

Unlike the first arm of retaliation/discrimination, which is analyzed under the McDonnell Douglas burden-shifting process and involves the proving and disproving of discriminatory animus, the interference arm does not involve a similar analysis. There is no proof or discussion of intent necessary in finding an employer liable. Instead, courts have held that an employer’s motive plays no role in a claim for substantive denial of benefits.

Employers must take caution and heed in how the courts view an employer’s interference with the FMLA-created right to medical leave and reinstatement.  Interference may occur as soon as an employer “chills” an employee’s desire to take FMLA leave. If there is a denial of lawfully entitled rights under the FMLA, the court could simply conclude that a violation existed.

While this may seem to make FMLA interference a “strict liability” violation, courts have prevented that by finding in favor of employers where the employer bore the burden and successfully established that the employee was not entitled to reinstatement for an acceptable reason as authorized by the FMLA (i.e. an employee would not have remained employed if she had not taken leave).

But, employers must also keep in mind that since interference is not about discrimination, an employer  may not simply validate its actions by establishing a legitimate business purpose for its decisions.

Finally, an employer’s human resources department is another major link to ensuring no “chilling” of FMLA rights occurs. Some important points HR and supervisory personnel should keep in mind are:

  • An employee’s FMLA request need not be in writing OR even specify that the employee is seeking an FMLA leave;
  • An employee does not need to provide exact dates or duration of the leave request;
  • If the leave was foreseeable, the employee must notify the employer at least 30 days before the leave is to begin, or “as soon as practicable” for unforeseeable leaves;
  • The employer must provide a written notice to the employee with details about expectations and obligations of the employee, and explain any consequence for failure to meet these obligations.

Although it is not an easy road, employers should intend (pun intended) to fight an FMLA interference claim by proving an acceptable reasons authorized by the FMLA existed, and continue to educate their HR departments on dealing with FMLA matters.

For additional information, please contact the author, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.