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Are Unsuccessful Attempts to Interfere with an Employee’s Exercise of FMLA Rights Actionable?

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If an employer interferes — successfully — with an employee’s exercise of her rights under the Family Medical Leave Act (“FMLA”), it creates a claim for “interference” under the statute.  But if an employer tries — unsuccessfully — to interfere with an employee’s exercise of her rights under the FMLA, does it also create a claim for “interference”?  Last week, in Gordon v. United States Capitol Police, the District Court for the District of Columbia confronted that question for the first time, and answered it “yes.”

In Gordon, the plaintiff was a police officer who was severely depressed because of the recent suicide of her husband.  She applied for pre-approval of FMLA leave from the Capitol Police’s “bank” system, in which employees seek pre-approval for FMLA leave, without identifying specific start or end dates for the leave.  A captain told her that upper-level managers were “mad” about FMLA requests and vowed to “find a problem” with hers.  Thereafter, the department, using her FMLA request as a basis, forced plaintiff to take a fitness-for-duty test, which she passed (plaintiff did lose a few days of pay while she was taking the test).  Still later, plaintiff made an appointment with her therapist that turned out to be in conflict with a police training course.  To resolve the conflict, the plaintiff made her first request to actually draw from her allotment of pre-approved FMLA leave days.  At first, her supervisor was “irate,” refused the request, and demanded a doctor’s note.  Later, he relented and granted her request.

Plaintiff sued for, among other things, “interference.”1To prevail on an interference claim under 29 U.S.C. § 2615(a)(1), a claimant must show that “her employer interfered with, restrain[ed], or denied the exercise of or the attempt to exercise, any right provided by the FMLA and that she was prejudiced thereby.”  Plaintiff didn’t claim that her employer’s actions caused her to be actually deprived of any FMLA leave, only that her employer attempted to discourage her from seeking or using such leave and that this attempt caused her harm.  Confronting this issue for the first time, the D.C. Circuit held that an employer action with a reasonable tendency to “interfere with, restrain, or deny” the “exercise of or attempt to exercise” an FMLA right may give rise to a valid interference claim under section 2615(a)(1), even where the action fails to actually prevent such exercise or attempt.

In light of rulings like Gordon, employers should act carefully, and with considerable forethought, when presented with employee requests for leave or accommodations.  Sometimes, even actions that have no adverse impact on an employee can create liability exposure.

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