FMLA and FLA Interference

Even though it is illegal for employers to interfere with eligible employees’ right to legally protected medical leave under either the Family Medical Leave (FMLA leave), 29 C.F.R. 825.220, or New Jersey Family Leave Act, N.J.S.A. 34:11B-9, we regularly receive calls from employees explaining that their employers are refusing to approve FMLA leave or FLA leave, denying them leave, discouraging and/or pressuring them against taking leave, demanding that they change the dates of their leave to a time that is more convenient for the employer, otherwise making it impossible for them to take leave, and/or insisting that the employee work from home while out on FMLA leave or FLA leave. You should know that any of those actions constitutes unlawful interference with employees’ rights to take leave under both the FMLA and FLA.

Both the federal Family and Medical Leave Act (FMLA) and New Jersey Family Leave Act make it unlawful for employers to interfere with, restrain, or deny employees’ rights to any protections guaranteed under those laws. That means that employers cannot interfere with employees’ rights to either take leave or participate in a proceeding or investigation into violations of the FMLA. 29 U.S.C. 2615; N.J.S.A. 34:11B-9.

For you to be qualified for medical and/or family leave under the FMLA or FLA, employees must both work for employers with a minimum number of employees within a geographic area and have worked a certain number of hours in a 12-month period. There are other requirements before you are deemed eligible for legally protected family leave and/or medical leave. For more information about whether you may qualify for FMLA leave, click here to be directed to our FMLA page. For more information about whether you may qualify for family leave (FLA leave), click here to be directed to our FLA page.

The most obvious and common form of interference with FMLA rights and/or FLA rights occurs when employers prevent employees from taking leave. There are, however, other ways that employers can interfere with employees’ rights to family and/or medical leave such as

• failing to notify employees of their right to take leave under the FMLA and/or FLA, which results in the denial of leave to eligible employees,
• failing to take action in response to employees’ request for leave,
• firing employees for excessive absences when they are out on leave,
• requiring physicians’ recertifications for each time that employees try to take intermittent leave,
• successfully discouraging employees from taking FMLA leave and/or FLA leave,
• forcing employees to take FMLA leave and/or FLA leave if that forced leave later prevents employees from using qualified leave when they need it,
• demanding that employees change the dates of their leave to times more convenient for the employer,
• requiring employees to work remotely while on FMLA leave and/or FLA leave, and/or
• interfering with employees’ rights to testify or participate in an investigation or legal proceeding concerning the FMLA and/or FLA.

Probably not. The Third Circuit in Ross v. Gilhuly made clear that to establish FMLA interference claims, employees need to show that

1. they were eligible for FMLA leave,
2. their employers were subject to the FMLA,
3. they gave notice of their intention to take FMLA leave, and
4. they were denied leave to which they were entitled under the FMLA.

Put more simply, to prove the existence of interference with FMLA leave, employees need only show that they were denied leave to which they were entitled under the FMLA. That means, as the Supreme Court of the United States held in Ragsdale v. Wolverine World Wide, Inc., that an FMLA interference claim will only be successful if the employee was prejudiced by the employer’s interference. The FLA is often interpreted in the same manner as the FMLA, and, therefore, the analysis would be the same under the FLA. Wolpert v. Abbot Laboratories, 817 F. Supp. 2d 424 (D.N.J. 2011).

Probably not. Courts generally find that some basic work-related questions during employees’ FMLA leave and/or FLA leave do not violate the law. Questions asked that probably do not violate the law involve the location of files, keys, passwords, and/or documents. In contrast, requests that employees perform regular job duties while on legally-protected leave under the FMLA or FLA may constitute illegal interference. Similarly, time-consuming inquiries and/or requests that employees perform substantive work may also constitute unlawful interference under both the FMLA and FLA. When the work-related inquiries cross the line into violating the law depends on the very specific facts of any given case, which probably need to be evaluated by New Jersey leave lawyers like those at Lenzo & Reis.

You may have an FMLA retaliation or FLA retaliation claim but not an interference claim. To learn more about FMLA retaliation and/or FLA retaliation, please click here.

Employees eligible for and in need of FMLA and/or FLA leave should not have to battle with their employers to get the leave to which they are entitled. If your employer is interfering with your right to take FMLA or FLA leave, you should call the leave interference attorneys at Lenzo & Reis. We have successfully represented hundreds of New Jersey employees both getting the leave to which they were entitled and being compensated for the denial of their right to take leave.