Is it ok if our managers discourage employee use of FMLA leave, without actually denying it?

Let’s see what Tracy Morgan thinks.

Recently, a federal appellate court concluded that a manager can cause an employer to violate the Family and Medical Leave Act merely by deterring an employee from enjoying benefits under the FMLA without actually causing the company to deny the employee’s request for those benefits.

The plaintiff was an ascending manager at a pharmaceutical company. She had taken some time off in 2015 to care for her daughter, who had a serious health condition. In April and May 2016, she took short-term FMLA leave to have surgery. Then, in June 2016, she worked remotely to care for her daughter while hospitalized.

After the plaintiff returned to the office, her direct supervisor told her that “[she] needed to be more visible in the office and attend[] meetings in person rather than by phone.” That supervisor then limited the plaintiff to one day of remote work per week, even though auditors in the plaintiff’s department regularly worked from home and some non-managers worked remotely full-time.

Still, the same manager encouraged the plaintiff to go to HR and ask about using paid time off or intermittent FMLA leave rather than remote work for any additional days the plaintiff spent away from the office. Shortly after that, the plaintiff applied for intermittent FMLA leave to continue to care for her daughter, which the company approved. Soon thereafter, the plaintiff resigned.

Then, she sued for FMLA interference, even though the company never denied her formal request for FML leave to care for her daughter. Instead, the plaintiff argued that her supervisor effectively chilled her from that FMLA leave when she all but eliminated remote work (while allowing others to take it), which unlawfully interfered with the exercise of her rights under the FMLA.

The FMLA makes it unlawful for an employer to “interfere with, restrain, or deny” FMLA rights.

The Second Circuit Court of Appeals concluded that “an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits,” which “reflects the statute’s plain, unambiguous text, according to which it is unlawful for an employer to ‘interfere with, restrain, or deny’ FMLA rights.”

Although your mileage may vary elsewhere, the Second Circuit’s holding aligns with the United States Department of Labor’s position.

Employers, remind your managers that (1) FMLA rights are non-negotiable; (2) they cannot discourage FMLA use; and (3) having different remote work rules for similarly-situated employees is a lawsuit waiting to happen.

Bonus tip: Fire anyone who comes to work today dressed as Sean “P Diddy” Combs.