FMLA Interference

Employee meetingEmployers often face legal action for interfering with the employee right of FMLA leave. FMLA interference occurs when an employer blocks an employee’s use of FMLA or disciplines an employee for using FMLA. Blocking an eligible employee’s use of FMLA or retaliating against an employee who used FMLA approved leave violates the law.

FMLA Basics: How FMLA Serves and Protects Employees

The Family and Medical Leave Act purposes to help employees balance work and life responsibilities, such as caring for a family member or dealing with a personal health issue. FMLA eligible employees receive job-protected leave. FMLA obligates eligible employers to provide eligible employees with up to 12 weeks of job-protected leave.

FMLA Employee Eligibility

To meet the requirements of FMLA, employees must meet a few simple items. An employee must have worked for a company for 12+ months, clocked at least 1,250 hours, and work at a location where their employer has 50+ workers. Once those criteria are satisfied, the employee must also have an FMLA approved reason for seeking leave.

Can my employer replace me while I’m on FMLA leave?

FMLA promises employees job-protected leave and obligates employers to hold the employee’s position. This means not replacing the employee or retaliating against the returning employee. Employers who violate the FMLA can expect legal action from employees.

How many weeks of FMLA do spouses of the same employer get?

Basically, it depends on the reason that the spouses want FMLA leave. If the FMLA leave with be used for bonding with a new child, employers are permitted to limit how much time a couple can have. Meanwhile, each spouse should receive the full FMLA leave time for caregiving or serious illness recovery.

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Common FMLA Interference

Since the FMLA implemented certain standards for protecting employees, their health, and their families, situations occur where FMLA is violated by employers who are naturally safeguarding their own interests. FMLA interference can have echoing consequences for an employer, though. Employees who recognize that their FMLA rights have been blocked should explore their legal response.

Failing to Recognize Health Conditions

FMLA leave does not include minor illness, like a cold or a slightly twisted ankle. However, employers block employees from using FMLA leave for qualifying conditions and may reject a request for FMLA leave on the grounds of insufficient medical certification. Failing to recognize serious health conditions or a simple health condition that becomes a complicated one or rejecting an application without allowing time for necessary medical information to be submitted can be violations of the FMLA.

Excessive Absences

Employers are permitted by law to require that employees are not absent from work. However, depending on how an employer handles absences, it’s possible that employers may discipline an employee for an absence that would fall under the FMLA. The employee may explain that the absences are due to an ongoing health issue or caregiving for a family member, but the employer still disciplines that employee. This is FMLA interference.

Too Stringent Company Policies on FMLA

Some companies demand long notices of an employee’s use of FMLA leave. Although FMLA allows employers to create their own policies for seeking leave, FMLA also sets its own standard of letting employers know about leave. Meeting the law’s requirements are the most important. Meanwhile, an employer may fail to recognize that an employee’s request for leave actually falls under the FMLA. An eligible employee does not need to say they want FMLA leave to seek leave that is under the FMLA.

FMLA allows employees to pre-plan leave and give their employer notice up to 30 days ahead of time. However, in situations where the issue was unforeseeable, an employee can take leave after providing sufficient information so that the employer can reasonable determine that FMLA applies.

Failing to Inform about FMLA Rights

FMLA obligates employers to share FMLA rights and obligations with their employees. If an employer does not inform an employee about these options, it is the same as block or interfering with their rights.

Cutting Off Health Insurance

Sometimes when an employee takes FMLA leave, an employer may cut off their health insurance. When an employee is out for FMLA leave, employers are obligated to give those employees written notice of needing to pay their health insurance with an additional time to pay it. Employers who fail to continue health insurance may be interfering with FMLA rights.

Over-the-top Employer Contacting Employee on Leave

An acceptable practice for employers is to request periodic updates from employees on leave. But employers who pressure employees to return or call them without stop are violating the law. FMLA allows employees leave to recover, and employers who hound their employees are not supporting the FMLA.

Sometimes employers, even with good intentions, suggest that employees on FMLA leave also work just a little. This can create all sorts of complications. Employees who take FMLA leave should be permitted to take their full leave without work expectations.

Discipline or Termination of Employees who use FMLA Leave

Subtle discipline occurs for employees on FMLA leave. Sometimes employers discipline employees for not completing work because they’re on leave. Other times an employer may give an employee a bad review that results in a termination due to the FMLA leave absence. These are all forms of FMLA interference.

Misplacing Returning Employee to a Lesser Position

The FMLA promises employees job-protected leave, meaning that when an employee returns from leave the employer is obligated to give the employee a position that is equal to his or her previous position. Employers who haphazardly place returning employees in any available position are violating the FMLA. Employee FMLA rights demand that employees return to jobs that are the same in shift, location, tasks, wages, and benefits.

Postponing or Failing to Reinstate Returning Employee

FMLA requires employers to immediately place returning employee’s into their same position. FMLA allows two days notice for employees and employers. Employers who decide to make an employee wait for their position to re-open are violating the law. Meanwhile, employers must give returning employees all benefits and automatic raises that occurred while the employee was on leave.

Misclassifying the Employee

FMLA allows employers not reinstate “key employees” after they take their FMLA leave. A key employee is someone who is a part of the highest paid employees of a business. In some cases, an employer would not reinstate because it would cause economic injury to the company. An employee can only be classified as “key” if their reinstatement would cause hardship to the company. Therefore, an employee who has only been classified as “key” to make an employer’s life easier would be a violation of the law.

Quick Questions: Has Your Employer Interfered with Your FMLA Employee Rights?

  • Has your employer refused your legitimate applications for leave?
  • Does your employer discourage you from using FMLA leave?
  • Has your employer found ways to actively avoid falling under FMLA obligations?
  • Did you suffer discipline or termination during or soon after taking FMLA leave?
  • Has your employer’s actions messed with your FMLA employee rights?

Under the law, two things matter when an employee files a report of FMLA interference: the employer’s actions to interfere with the law and the monetary loss to the employee. The FMLA sets out to provide protections to an employee who is struggling to manage life and work responsibilities. Therefore, an employer who interferes with the law faces legal action for negatively impacting an employee’s finances.


If you have experienced FMLA interference, contact an employment lawyer who will know how to navigate your case and your rights under the law.

Don’t hesitate, talk to an attorney: (412) 626-5626 or