/>iMost employers have gotten the hang of handling FMLA requests: Make sure the employee is eligible; get paperwork from the provider; and monitor the amount of time taken. Whether all supervisors are overjoyed with every employee’s desire to take off due to a qualifying condition is another matter. But if you follow the procedures and grant the FMLA leave, can you still interfere with an employee’s rights? In Kemp v. Regeneron Pharmaceuticals, the Second Circuit says you can.
But We Didn’t Deny any Leave!
In 2016, Denise Kemp asked for, and received, FMLA leave to care for her disabled daughter and to have her own surgery. When her daughter had surgery in June 2016, Kemp opted to work remotely from the hospital. When that stretch of remote work ended, her supervisor told her that she “needed to be more visible in the office and attend meetings in-person rather than by phone” and limited her to one remote day per week. At her supervisor’s suggestion, Kemp then applied for and was granted intermittent FMLA leave so that she could continue to help with her daughter. There continued to be discussions about transitioning Kemp to a job with fewer managerial responsibilities (but with the same title and compensation). Eventually, Kemp retired, claiming that her decision was spurred by Regeneron’s refusal to let her work remotely.
Kemp filed an action claiming the company violated her rights under the FMLA and certain state statutes. Regeneron moved for summary judgment, arguing that the company never denied her request for FMLA leave (as well as the fact that the claims were time-barred). The district court granted summary judgment, finding that the company did not violate Kemp’s rights under the FMLA because it granted the leave but “merely discouraged her from taking it.” The district court also granted summary judgment on the grounds that the claims were not timely. Kemp appealed.
Claims Were Untimely but Discouragement Is Interference
The Second Circuit affirmed the summary judgment order based on the timeliness issue. However, the court took the opportunity to address whether an employer could violate the FMLA if it actually granted leave but otherwise interfered with the employee’s rights.
The court turned to the actual text of the FMLA that states it is unlawful for an employer to “interfere with, restrain or deny” FMLA rights. As such, the Second Circuit said the lower court was wrong when it found that Kemp had to prove that the employer denied her requests for FMLA leave to win on her claim. The proper standard in an FMLA interference claim, according to the opinion, requires a plaintiff to “establish that the defendant denied or otherwise interfered with a benefit to which she was entitled under the FMLA.” If an employer “impeded” the exercise of an employee’s FMLA rights, that would allow the claim to go forward.
Interestingly, the court also noted that limiting remote work is not the same as interfering with FMLA rights. Specifically, the court stated:
The FMLA protects Kemp’s right to take . . . leave for specific reasons and for a specified number of weeks during a 12-month period. It does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not “leave” within the meaning of the statute.
Ultimately, because the claims were not timely, the Second Circuit affirmed the lower court’s dismissal of the case, but it was clear that discouragement of the taking of FMLA leave could be a valid claim.
Don’t Go Negative on the FMLA
Interference with a request for FMLA leave is clearly an FMLA violation. However, under the Kemp decision, even discouraging an employee to take leave can be actionable. Employers should be clear with supervisors and management that stray comments like “you should be in the office more” may land differently if an employee is either on, considering taking, or returning from FMLA leave. Training on the eligibility and process for obtaining FMLA leave is essential. Everyone should understand that FMLA leave is a right that can be used and should not be discouraged.
