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Viewpoint: FMLA denial not required to have violated employee’s rights

Court rules that discouraging FMLA filing is enough to have triggered a violation

Ex-TQL employee files lawsuit, claiming freight brokerage harmed his job prospects. (Photo: Shutterstock)

An employee worked for his employer for 27 years, during which he periodically took leave under the Family and Medical Leave Act (FMLA). He retired and then filed a lawsuit against his employer after a conversation with his employer’s FMLA manager who allegedly discouraged him from taking more FMLA leave. On appeal, the federal 7th Circuit Court of Appeals (which has jurisdiction over Illinois, Wisconsin, and Indiana) clarified that an employer can violate the FMLA simply by discouraging, not actually denying, an employee from exercising his rights under the FMLA.


Over the 27 years, the employee had multiple medical conditions, including post-traumatic stress disorder. During his employment, he asked his FMLA leave manager about taking time off so he could receive recommended treatment for his PTSD.  At that point, he had exhausted only 304 hours of his 480-hour allotment.

According to the employer, the employee asked for leave that would last several months, and the leave manager told him he did not have that much FMLA leave left. The employee then asked whether he would be fired, and the leave manager said that if he used leave he did not have, he would be charged for his absences once the FMLA leave was exhausted. The leave manager told the employee that he could not take FMLA leave he did not have.

According to the employee, he asked for a total of eight weeks’ leave, using all of his remaining FMLA leave, plus his sick and annual leave. He alleged that the leave manager told him, “You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.” The employee alleged that the leave manager’s statement made him afraid he would be fired for taking FMLA leave. Instead of taking the FMLA leave, the employee decided to retire.

After his retirement, the employee filed his suit against the employer, the FMLA manager, and other agents of the employer, for alleged violations of multiple federal laws, including the Family and Medical Leave Act.  The trial court ruled in favor of the employer on the FMLA claim, noting that the employee was never denied FMLA leave.  The employee appealed his claims regarding the FMLA.

Appellate court’s decision

There are two distinct theories of recovery under the FMLA. The first being through an interference claim where it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. The second being through a retaliation claim where an employer that “discharge[s] or in any other manner discriminate[s] against any individual for opposing any practice made unlawful by” the FMLA can be liable for retaliation. In this case, the court was required to address the first theory.

The court determined that based on the statutory text and context of the FMLA, denial of FMLA leave is not required for the employee to show that the employer interfered with his FMLA rights. The court held that the statutory text of the law is not ambiguous as to whether denial is required to show a violation, and that it is not required. Under the FMLA, it is unlawful to interfere with “the exercise of or the attempt to exercise” FMLA rights. The court noted that while denial would certainly be an interference, an interference does not have to be in the form of a denial.


As the 7th Circuit points out, an employer can violate an employee’s FMLA rights through discouragement of exercising rights. An employee need not be denied FMLA leave for the employer to be liable for an FLMA interference claim. Furthermore, this case demonstrates that it is important to remember that, whether you are the president of the company or a benefits administrator in human resources, if you are a supervisor or executive, you are an agent of the company, and your words can impact the employer’s liability. The court noted that the parties have not litigated on appeal which of the defendants are proper defendants, but under the FMLA an employer is defined as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” FMLA managers, HR representatives, and supervisors of employees should be well informed on FMLA issues such as this one. Lastly, it is good practice for managers and supervisors to document communications with employees, especially after verbal conversations, to help avoid the “he said, she said” issues which occurred in this case.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected].  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

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